Why It's Clear as Mud or Who's on First?

[I would note that the Department of Law attorneys seem to have refined their answers since last week's appearance before the Senate Judiciary Committee.  I'm guessing that they've absorbed enough questions from people and are now better prepared for the kinds of questions people are asking. But that doesn't make things clear.  That lack of clarity is perhaps more precise though.]

I'm trying to figure out how to write about this morning's State Affairs meeting. See previous post for the audio.  You'll get some idea of the problem when I say that a lot of the discussion revolved around the meaning of words.  The Citizens United v. FEC decision means that there can't be restrictions on corporate independent expenditures on political speech, but it doesn't affect limits on contributions made directly to candidates. 

It does NOT affect disclosure and disclaimer laws.  So the question is, how does this impact Alaska law?  Alaska banned all issue advertising by corporations (and labor unions), so Alaska has no laws requiring disclosure or disclaimers for corporations and labor unions  since they had nothing to disclose.

So, what does Alaska need to do to be able to keep corporations and labor unions from distorting the elections through unlimited spending on campaign issue ads and other 'independent expenditures" on political issues?  Making sure that the public knows who is paying seems to be the first answer:  making sure disclosure and disclaimer laws apply to corporations.

One of the problems is that the Federal language and the State language are not the same.  And much of the discussion got bogged down in questions about what words mean:

[Note:  The words are from my rough notes taken at the meeting.  I've gone through and cleaned them up a bit, but not completely.   Again - read with caution and go to the Gavel to Gavel audio in the previous post to get the actual words used.]

Johnson:  Political speech - is there political speech outside an election?  Say, opposition to particular election or legislator, is that political speech?

Johnson:  with ballot initiatives you could name yourself anything you want.  Will this require us to include contributors to these groups?  Can’t be anonymous.  If a group, do they have to list all of them now?

 [Johnson is Rep. Craig Johnson]

or

Johnson:  In prohibited expenditures in our statutes:  Can’t be anonymous unless printed material other than ad in newspaper.
Ptacin:  I believe that only applies to individuals
p. 28 AS15.13.084
Johnson:  It says a person…
Ptacin:  Person includes labor union and corporations, separate from individual
Johnson:  Here it says person, which means corp.  so as I read this a business could do anything other than a newspaper anonymously.
Ptacin:  A person is not entitled to make an expenditure anonymously, except….
Johnson;  Except read ....
Ptacin:  that exception qualified by (a) refers to individual
Petersen:  One step further...but an individual could print up flyer without name on it and go door to door, no disclaimer responsibility.
Ptacin:  Under this distinct set of circumstances, yes.
Seaton:  A little confusing.  Corporation, individual, natural person, person, all those could you clarify?

[Dept.of Law attorney John Ptacin; Rep. Pete Petersen;  Rep. Paul Seaton]

or

Seaton:  Person includes corporations and labor unions but excludes natural persons?
Johnson:  I want clarity, I think a natural person is a person
Ptacin:  Law distinguishes between natural person (individual) and person applies to labor unions and business
Seaton:  You're saying person excludes individuals and natural persons
Ptacin:  Mr. Dosik is on the phone Atty General’s office, he can answer better.
Dosik:  A person is broader group than individuals - includes individuals and entities and organizations ???  seems to conflict

[Dept. of Law attorney Thomas Dosik I believe]

There were also problems with how to get the actual contributors to disclose who they are rather than hiding behind names like "Alaskans for Good Things."

Johnson:  with ballot initiatives you could name yourself anything you want.  Will this require us to include contributors to these groups?  Can’t be anonymous.  If a group, do they have to list all the contributors? now?
Ptacin:  Doesn’t change laws regarding groups - reports in 30 days.  Expenses and contributors.  With independent expenditures different.  If corps and labor unions entitled to make independent speech, they would tell us in ten days.
Gruenberg:  AS 15.13.084 (2)  A person may not make an expenditure using a fictitious name or name of another.  I can’t find definition?  Do regs define that or precedent that defines that?  If not, what is the legislative history?  The intent?
Ptacin:  I don’t.  Regulation on … Give me a minute
Gruenberg:  Question can be for anyone else?  Any agency common law decision?
Holly Hill from APOC by phone:  There is a current case before the Commission that we aren’t at liberty to discuss.
G: Is one of the issues fictitious name?
Holly Hill:  0901cd  assigned to hearing officer:  APO-01   Asst. AG Dosick may be able to tell us when it will be decided.
Dosick (Dept. of Law attorney by phone):  Within several months.
Lynn:  So about election time?
Dosick:  Yes.

[Rep. Max Gruenberg; APOC is Alaska Public Offices Commission]

 The current statutes don't help a lot:

From AS 15.13.400 Definitions
(11) "individual" means a natural person;
(14) "person" has the meaning given in AS 01.10.060 , and includes a labor union, nongroup entity, and a group;
(13) "nongroup entity" means a person, other than an individual, that takes action the major purpose of which is to influence the outcome of an election, and that
(16) "publicly funded entity" means a person, other than an individual, that receives half or more of the money on which it operates during a calendar year from government, including a public corporation.  
(8) "group" means

(A) every state and regional executive committee of a political party; and

(B) any combination of two or more individuals acting jointly who organize for the principal purpose of influencing the outcome of one or more elections and who take action the major purpose of which is to influence the outcome of an election; a group that makes expenditures or receives contributions with the authorization or consent, express or implied, or under the control, direct or indirect, of a candidate shall be considered to be controlled by that candidate; a group whose major purpose is to further the nomination, election, or candidacy of only one individual, or intends to expend more than 50 percent of its money on a single candidate, shall be considered to be controlled by that candidate and its actions done with the candidate's knowledge and consent unless, within 10 days from the date the candidate learns of the existence of the group the candidate files with the commission, on a form provided by the commission, an affidavit that the group is operating without the candidate's control; a group organized for more than one year preceding an election and endorsing candidates for more than one office or more than one political party is presumed not to be controlled by a candidate; however, a group that contributes more than 50 percent of its money to or on behalf of one candidate shall be considered to support only one candidate for purposes of AS 15.13.070 , whether or not control of the group has been disclaimed by the candidate; 

 

Is your head spinning yet?  Translation (I think):

Individual = Human being, with a body, blood, brain, etc.
Person = Corporation or Labor Union
Publicly Funded Entity = non-profit organizations  (I think)
Nongroup entity = appears to be a group formed by a corporation or labor union to affect elections like a PAC

Here is the whole list of definitions from this section of the Statutes (I'm not including 8 again to save space but it is above.)

AS 15.13.400. Definitions.

In this chapter,

(1) "candidate"

(A) means an individual who files for election to the state legislature, for governor, for lieutenant governor, for municipal office, for retention in judicial office, or for constitutional convention delegate, or who campaigns as a write-in candidate for any of these offices; and

(B) when used in a provision of this chapter that limits or prohibits the donation, solicitation, or acceptance of campaign contributions, or limits or prohibits an expenditure, includes

(i) a candidate's campaign treasurer and a deputy campaign treasurer;

(ii) a member of the candidate's immediate family;

(iii) a person acting as agent for the candidate;

(iv) the candidate's campaign committee; and

(v) a group that makes expenditures or receives contributions with the authorization or consent, express or implied, or under the control, direct or indirect, of the candidate;

(2) "commission" means the Alaska Public Offices Commission;

(3) "communication" means an announcement or advertisement disseminated through print or broadcast media, including radio, television, cable, and satellite, the Internet, or through a mass mailing, excluding those placed by an individual or nongroup entity and costing $500 or less and those that do not directly or indirectly identify a candidate or proposition, as that term is defined in AS 15.13.065(c);

(4) "contribution"

(A) means a purchase, payment, promise or obligation to pay, loan or loan guarantee, deposit or gift of money, goods, or services for which charge is ordinarily made and that is made for the purpose of influencing the nomination or election of a candidate, and in AS 15.13.010(b) for the purpose of influencing a ballot proposition or question, including the payment by a person other than a candidate or political party, or compensation for the personal services of another person, that are rendered to the candidate or political party;

(B) does not include

(i) services provided without compensation by individuals volunteering a portion or all of their time on behalf of a political party, candidate, or ballot proposition or question;

(ii) ordinary hospitality in a home;

(iii) two or fewer mass mailings before each election by each political party describing the party's slate of candidates for election, which may include photographs, biographies, and information about the party's candidates;

(iv) the results of a poll limited to issues and not mentioning any candidate, unless the poll was requested by or designed primarily to benefit the candidate; or

(v) any communication in the form of a newsletter from a legislator to the legislator's constituents, except a communication expressly advocating the election or defeat of a candidate or a newsletter or material in a newsletter that is clearly only for the private benefit of a legislator or a legislative employee;

(vi) a fundraising list provided without compensation by one candidate or political party to a candidate or political party;

(5) "electioneering communication" means a communication that

(A) directly or indirectly identifies a candidate;

(B) addresses an issue of national, state, or local political importance and attributes a position on that issue to the candidate identified; and

(C) occurs within the 30 days preceding a general or municipal election;

(6) "expenditure"

(A) means a purchase or a transfer of money or anything of value, or promise or agreement to purchase or transfer money or anything of value, incurred or made for the purpose of

(i) influencing the nomination or election of a candidate or of any individual who files for nomination at a later date and becomes a candidate;

(ii) use by a political party;

(iii) the payment by a person other than a candidate or political party of compensation for the personal services of another person that are rendered to a candidate or political party; or

(iv) influencing the outcome of a ballot proposition or question;

(B) does not include a candidate's filing fee or the cost of preparing reports and statements required by this chapter;

(C) includes an express communication and an electioneering communication, but does not include an issues communication;

(7) "express communication" means a communication that, when read as a whole and with limited reference to outside events, is susceptible of no other reasonable interpretation but as an exhortation to vote for or against a specific candidate;

(8) "group" means [already listed above, not repeated here]

(9) "immediate family" means the spouse, parents, children, including a stepchild and an adoptive child, and siblings of an individual;

(10) "independent expenditure" means an expenditure that is made without the direct or indirect consultation or cooperation with, or at the suggestion or the request of, or with the prior consent of, a candidate, a candidate's campaign treasurer or deputy campaign treasurer, or another person acting as a principal or agent of the candidate;

(11) "individual" means a natural person;

(12) "issues communication" means a communication that

(A) directly or indirectly identifies a candidate; and

(B) addresses an issue of national, state, or local political importance and does not support or oppose a candidate for election to public office.

(13) "nongroup entity" means a person, other than an individual, that takes action the major purpose of which is to influence the outcome of an election, and that

(A) cannot participate in business activities;

(B) does not have shareholders who have a claim on corporate earnings; and

(C) is independent from the influence of business corporations.

(14) "person" has the meaning given in AS 01.10.060 , and includes a labor union, nongroup entity, and a group;

(15) "political party" means any group that is a political party under AS 15.60.010 and any subordinate unit of that group if, consistent with the rules or bylaws of the political party, the unit conducts or supports campaign operations in a municipality, neighborhood, house district, or precinct;

(16) "publicly funded entity" means a person, other than an individual, that receives half or more of the money on which it operates during a calendar year from government, including a public corporation.