Legislature(2009 - 2010)BELTZ 105 (TSBldg)

03/15/2010 01:30 PM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved SB 244 Out of Committee
Heard & Held
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
                  SB 284-CAMPAIGN EXPENDITURES                                                                              
2:06:40 PM                                                                                                                    
CHAIR FRENCH announced  the consideration of SB 284  and asked for                                                              
a  motion to  adopt  the proposed  committee  substitute (CS).  It                                                              
incorporates  the amendments that  were made  to version  A during                                                              
the 3/12/10 hearing.                                                                                                            
SENATOR MCGUIRE  moved to  adopt the judiciary  work draft  CS for                                                              
SB  284,  labeled  26-LS1448\R,  as the  working  document.  There                                                              
being no objection, version R was before the committee.                                                                         
CHAIR  FRENCH noted  that Mr.  Bullard  sent a  memo pointing  out                                                              
that the  provisions on page  6, lines 5-7,  and on page  7, lines                                                              
28-30,  are   redundant.  He  suggested  the   committee  consider                                                              
removing the redundancy.                                                                                                        
CHAIR FRENCH moved to adopt Amendment 1.                                                                                        
                          AMENDMENT 1                                                                                       
     OFFERED IN THE SENATE                                                                                                      
          TO:  CSSB 284(JUD), Draft Version "R"                                                                                 
     Page 6:                                                                                                                    
          Delete lines 5, 6, and 7                                                                                              
SENATOR WIELECHOWSKI objected for discussion purposes.                                                                          
CHAIR  FRENCH explained  version R  adds the  requirement in  Sec.                                                              
15.13.090(a)(2)(E)  that  the  communication  must  clearly  state                                                              
that  it  is  not  authorized,   paid  for,  or  approved  by  the                                                              
candidate. The existing  AS 15.13.135(b)(2), on page  7, lines 28-                                                              
30, already provides that requirement.                                                                                          
SENATOR WIELECHOWSKI removed his objection to Amendment 1.                                                                      
CHAIR  FRENCH  found  no  further  objection  and  announced  that                                                              
Amendment 1 is adopted.                                                                                                         
He noted that the second point in Mr. Bullard's memo addressed                                                                  
in an amendment proposed by Senator Coghill.                                                                                    
CHAIR FRENCH moved Amendment 2, labeled 26-LS1448\R.2, and                                                                      
objected for discussion purposes.                                                                                               
                          AMENDMENT 2                                                                                       
     OFFERED IN THE SENATE         BY SENATOR COGHILL                                                                           
          TO:  CSSB 284(JUD), Draft Version "R"                                                                                 
     Page 7, following line 30:                                                                                                 
          Insert a new bill section to read:                                                                                    
        "* Sec. 16. AS 15.56.014(a) is amended to read:                                                                     
               (a)  A person commits the crime of campaign                                                                      
         misconduct in the second degree if the person                                                                          
                    (1)  knowingly circulates or has                                                                            
          written,   printed   or    circulated   a   letter,                                                                   
          circular, or  publication relating to  an election,                                                                   
          to  a candidate  at  an  election, or  an  election                                                                   
          proposition  or  question   without  the  name  and                                                                   
          address of the author appearing on its face;                                                                          
                    (2)        except    as    provided    by                                                                   
          AS 15.13.090(b),  knowingly prints or  publishes an                                                                   
          advertisement,    billboard,    placard,    poster,                                                                   
          handbill,    paid-for     television    or    radio                                                                   
          announcement,  or communication,  as  that term  is                                                                   
          defined  in  AS 15.13.400,  intended  to  influence                                                                   
          the  election  of  a  candidate  or  outcome  of  a                                                                   
          ballot  proposition or  question without the  words                                                                   
          "paid for  by" followed by the name and  address of                                                                   
          the  person   [CANDIDATE,  GROUP,   OR  INDIVIDUAL]                                                               
          paying  for the advertising  or communication  and,                                                                   
          if  a candidate  or  group, with  the  name of  the                                                                   
          campaign chair;                                                                                                       
                    (3)  knowingly makes a communication,                                                                       
          as that term is defined in AS 15.13.400,                                                                              
                         (A)  containing false factual                                                                          
               information relating to a candidate for an                                                                       
                         (B)  that the person knows to be                                                                       
               false; and                                                                                                       
                         (C)       that   would   provoke   a                                                                   
               reasonable  person under the circumstances  to                                                                   
               a  breach of  the peace or  that a  reasonable                                                                   
               person  would  construe  as  damaging  to  the                                                                   
               candidate's   reputation    for   honesty   or                                                                   
               integrity,     or    to    the     candidate's                                                                   
               qualifications to serve if elected to                                                                            
     Renumber the following bill sections accordingly.                                                                          
SENATOR  COGHILL said  the  amendment is  based  on Mr.  Bullard's                                                              
legal analysis that  the phrase "candidate, group,  or individual"                                                              
should be  amended to  "person" to correspond  to the  changes the                                                              
bill made to AS 15.13.090.                                                                                                      
2:11:14 PM                                                                                                                    
ALPHEUS  BULLARD,   Attorney,  Legislative   Legal  and   Research                                                              
Services, explained  that the bill amends AS  15.13.135(b) on page                                                              
7, line 20,  by replacing "individual, group,  or nongroup entity"                                                              
with "person"  to correspond with  the U.S. Supreme  Court holding                                                              
in Citizens  United  to capture  that universe  of people  who are                                                              
now allowed to  make communications. The purpose  of the amendment                                                              
is  to  make  a similar  replacement  in  AS  15.56.014(a)(2)  for                                                              
campaign misconduct.                                                                                                            
CHAIR FRENCH  observed that the  only change Amendment 2  makes is                                                              
to replace the  phrase "candidate, group, or  individual" with the                                                              
word "person" on page 1, line 15.                                                                                               
SENATOR COGHILL  said the  amendment conforms  bill Section  15 to                                                              
AS 15.56.014(a).                                                                                                                
MR. BULLARD said that's correct.                                                                                                
CHAIR  FRENCH asked  if the crime  of campaign  misconduct  in the                                                              
second degree is a class B misdemeanor.                                                                                         
MR. BULLARD agreed that it is a class B misdemeanor.                                                                            
CHAIR  FRENCH removed  his objection  to Amendment  2. Finding  no                                                              
further objection, he announced that Amendment 2 is adopted.                                                                    
2:14:21 PM                                                                                                                    
CHAIR FRENCH  moved to adopt  Amendment 3, labeled  26-LS1448\R.1,                                                              
and objected for discussion purposes.                                                                                           
                          AMENDMENT 3                                                                                       
     OFFERED IN THE SENATE                   BY SENATOR COGHILL                                                                 
          TO:  CSSB 284(JUD), Draft Version "R                                                                                  
     Page 5, line 18, through page 6, line 7:                                                                                   
     Delete all material and insert:                                                                                            
          "Sec. 15.13.090. Identification of communication.                                                                   
     (a) All  communications shall  be clearly identified  by                                                                   
     the  words  "paid  for  by" followed  by  the  name  and                                                                   
     address  of  the  person  [CANDIDATE,   GROUP,  NONGROUP                                                               
     ENTITY,  OR INDIVIDUAL]  paying  for the  communication.                                                                   
     In addition, a person shall clearly                                                                                    
               (1)  provide the person's address, or the                                                                    
     address of the person's principal place of business;                                                                   
               (2)  for a person other than an individual                                                                   
     or candidate, include                                                                                                  
                    (A)  the name and title of the person's                                                                 
     principal officer;                                                                                                     
                    (B)  a statement from the principal                                                                     
     officer approving the communication; and                                                                               
                    (C) the name and city and state of                                                                      
     residence   or   principal   place   of   business,   as                                                               
     applicable,  of  each  of  the  person's  three  largest                                                               
     contributors  under AS 15.13.040(e)(5),  if any,  during                                                               
     the   12-month   period   before   the   date   of   the                                                               
     communication; and                                                                                                     
               (3)  for a candidate, include                                                                                
                    (A)  the name of the candidate; and                                                                     
                    (B)  a statement from the candidate                                                                     
     approving the  communication [CANDIDATES AND  GROUPS MAY                                                               
     IDENTIFY THE NAME OF THEIR CAMPAIGN CHAIRPERSON]."                                                                         
     Page 6, lines 19 - 20:                                                                                                     
          Delete "(a)(2)(C) of this section and, if                                                                             
     applicable, (a)(2)(D)"                                                                                                     
          Insert "(a)(1) and (a)(2)(C)"                                                                                         
     Page 6, line 29:                                                                                                           
          Delete "AS 15.13.090(a)(2)(D)"                                                                                        
          Insert "AS 15.13.090(a)(2)(C)"                                                                                        
SENATOR COGHILL  said the amendment  deletes and rewrites  much of                                                              
Section 11,  basically making  three changes.  First, it  requires                                                              
identification  in  all  circumstances;  second,  it  deletes  the                                                              
redundant  subparagraph   (E)  on   page  6,  which   was  already                                                              
accomplished  with the  adoption  of Amendment  2;  and third,  it                                                              
changes the requirement  to identify the top five  contributors to                                                              
require identification of the top three contributors.                                                                           
SENATOR  COGHILL said  that  he supports  full  disclosure but  he                                                              
objects  if that's  all that people  will hear  during a  campaign                                                              
advertisement.  All  these  campaign  finance  contributions  will                                                              
have  to  be  reported  in  the aggregate  of  over  $100  in  the                                                              
campaign  finance   disclosure  anyway  so  this   requirement  is                                                              
onerous,  he  said.   Thus,  reducing  the  number   to  three  is                                                              
2:17:30 PM                                                                                                                    
CHAIR FRENCH  referred to lines  17-19 of the amendment  and asked                                                              
if  the idea  is that  in every  normal  campaign advertisement  a                                                              
candidate  would be  required to  state their  name and that  they                                                              
approve the message                                                                                                             
SENATOR COGHILL  said yes and  version R  on page 5,  lines 18-22,                                                              
basically says that.                                                                                                            
SENATOR MCGUIRE  offered the view  that the amendment  attempts to                                                              
replace  subparagraph  (E)  on   page  6  by  putting  it  in  the                                                              
affirmative  and said  she  would  argue that  doing  so makes  it                                                              
unduly burdensome and possibly an interference.                                                                                 
2:19:53 PM                                                                                                                    
CHAIR  FRENCH  called  a  point   of  order;  lines  9-16  of  the                                                              
amendment   describe    the   disclosure   requirements    for   a                                                              
corporation, union, or group.                                                                                                   
SENATOR COGHILL agreed.                                                                                                         
SENATOR MCGUIRE said she understood.                                                                                            
CHAIR   FRENCH  noted   that  version   R   requires  that   those                                                              
disclosures be audible  in radio or television  advertisements. He                                                              
asked  Senator  Coghill   if  he  envisions  lines   9-16  of  the                                                              
amendment to be text on a screen or audible.                                                                                    
SENATOR COGHILL  replied he believes  that a different  section of                                                              
the statute requires disclosures to be audible for radio.                                                                       
CHAIR FRENCH agreed;  Section 12 of the current  draft modifies AS                                                              
15.13.090 adding a new subsection to jibe with (a)(2)(C).                                                                       
CHAIR  FRENCH  said  his  understanding   is  that  the  amendment                                                              
requires  identification   of  the   three  largest   contributors                                                              
instead of  the top  five tracked  over a 12  month period  and it                                                              
adds  a requirement  that the  candidate  approve his  or her  own                                                              
campaign advertisements. He asked Mr. Bullard if he agrees.                                                                     
2:23:35 PM                                                                                                                    
MR.  BULLARD replied  it also  shifts the  disclosure. First,  the                                                              
amendment  drops the  provision that  the candidate  or group  may                                                              
identify  the campaign  chair. It  requires that  all persons  are                                                              
required to  provide the identifying  information. In  the current                                                              
draft it  was only  a person other  than a candidate,  individual,                                                              
or political  party who was  required to  do that. Then  it tracks                                                              
in a similar, but  not exact, fashion all the requirements  of the                                                              
bill except  the top  five contributors  are  narrowed to  the top                                                              
three. The 12 month  period is the same in both  the amendment and                                                              
the  bill. The  requirement that  candidates  name themselves  and                                                              
provide a statement approving the communication is new.                                                                         
CHAIR  FRENCH commented  that  he likes  the  idea that  everybody                                                              
provides  the person's  address  or principle  place of  business,                                                              
but not much else.                                                                                                              
SENATOR  WIELECHOWSKI said  he could  support  the amendment  with                                                              
some modifications, but not as currently written.                                                                               
CHAIR FRENCH  suggested the  committee vote  on the amendment  and                                                              
depending  on the  outcome the  bill might  need further  amending                                                              
before it is passed along to the next committee.                                                                                
2:26:38 PM                                                                                                                    
SENATOR COGHILL said  he's willing to withdraw  the amendment, but                                                              
he would  like an opportunity to  try to establish what  should be                                                              
a requirement  for both a candidate  and a corporation  because he                                                              
foresees  a  legal entanglement  involving  unequal  treatment  if                                                              
there is no similarity between the requirements.                                                                                
CHAIR FRENCH asked if he is withdrawing the amendment.                                                                          
SENATOR COGHILL withdrew Amendment 3.                                                                                           
2:28:53 PM                                                                                                                    
SENATOR  WIELECHOWSKI  said he'd  like  to hear  from  legislative                                                              
legal about whether  or not there is an equal  protection argument                                                              
for   having   different  requirements   for   candidates   versus                                                              
MR.  BULLARD responded  he wasn't  prepared to  offer an  off-the-                                                              
cuff legal response, but he would have an answer on Wednesday.                                                                  
2:29:44 PM                                                                                                                    
CHAIR FRENCH  asked if  the committee  had additional  concerns or                                                              
SENATOR  WIELECHOWSKI  asked  if  Mr.  Bullard  could  comment  on                                                              
whether  or  not  they  could  restrict   campaign  activities  of                                                              
corporations or unions that have foreign shareholders.                                                                          
MR. BULLARD explained  that federal law already  prohibits foreign                                                              
nationals from involving  themselves in federal,  state, and local                                                              
elections.  In some cases  this extends  to American  corporations                                                              
or  American  subsidies  of  foreign  corporations  where  foreign                                                              
nationals  are  directing  decisions regarding  how  they  involve                                                              
themselves  in the U.S.  electoral processes.  There are  possible                                                              
federal preemption  arguments if the state were  to involve itself                                                              
in attempting  to regulate  or govern  American corporations  with                                                              
foreign ownership  or some  portion of  foreign ownership  in this                                                              
same  field.  There  is  no immediate  and  clear  answer  to  the                                                              
question, he concluded.                                                                                                         
2:31:29 PM                                                                                                                    
SENATOR  WIELECHOWSKI   said  his   concern  is  that   a  foreign                                                              
government  or foreign  corporation  could set  up  in Alaska  and                                                              
attempt  to influence  elections in  the state.  He asked  if he's                                                              
saying that there's nothing the Legislature can do about that.                                                                  
MR.  BULLARD  replied  that situation  is  already  prohibited  by                                                              
federal law. An  American subsidiary of a foreign  corporation has                                                              
to use proceeds  from its American operations to fund  any sort of                                                              
involvement in  an American election.  If the American  subsidiary                                                              
receives direction  on how  to proceed from  overseas or if  it is                                                              
being   reimbursed    by   the    foreign   parent    corporation,                                                              
electioneering  involvement would  be  prohibited. This  is a  new                                                              
issue  in Alaska  since  corporations were  previously  prohibited                                                              
absolutely. I don't  know if we can prohibit this  as a state, I'm                                                              
just alerting the  committee to the possible  preemption argument,                                                              
he said.                                                                                                                        
2:33:22 PM                                                                                                                    
CHAIR   FRENCH  asked   about  the   possibility  of   restricting                                                              
corporate  involvement  in Alaska  elections  only  to those  U.S.                                                              
corporations that are domiciled in Alaska.                                                                                      
MR. BULLARD offered to provide an opinion on the topic.                                                                         
CHAIR FRENCH  asked him to  do that and to  look into some  of the                                                              
concerns Senator  Wielechowski expressed. I share  those concerns,                                                              
he  said.  We  have  a  right  to   be  concerned  about  a  shell                                                              
corporation  trying to  manipulate  voters and  if  we need  state                                                              
statutes to  deal with  that, then now  is the time  to do  it, he                                                              
2:34:48 PM                                                                                                                    
SENATOR WIELECHOWSKI  said he'd like to  go a step further  and to                                                              
the  extent  possible  prohibit  corporations  that  have  foreign                                                              
shareholders  that hold X  percentage or X  dollars of  stock. For                                                              
years  the federal  government has  had a policy  of not  allowing                                                              
foreign  nationals  to  participate  in  elections  and  now  this                                                              
Supreme Court  case has  opened the  backdoor to allowing  foreign                                                              
nationals to participate  in and influence elections.  "I would be                                                              
very  interested in  trying to  pursue  methods [so]  that we  can                                                              
prevent that sort of thing," he said.                                                                                           
CHAIR  FRENCH  said he  shares  the  sentiment  but the  clock  is                                                              
ticking  toward  adjournment  and  he doesn't  want  to  miss  the                                                              
opportunity of passing  a bill that solves a large  portion of the                                                              
CHAIR  FRENCH  found  no  comments   from  Holly  Hill  and  Jason                                                              
Brandeis  with APOC  or John Ptacin  with DOL.  He announced  that                                                              
the committee would continue to work on SB 284.                                                                                 
2:36:32 PM                                                                                                                    
There  being no  further business  to come  before the  committee,                                                              
Chair French adjourned the meeting at 2:36 p.m.                                                                                 

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