Measure 1 could be costly in several ways

Posted: Sunday, May 16, 2010

The Alaska Constitution imparts to the voters of Alaska the right to enact laws through the initiative process. At every election, we consider proposals put forward by the collective voice of the people. This year, Ballot Measure 1 will be decided on during the August primary election, leaving us a few months to learn more about it, what it would do, and how our lives would change if it became law.

Measure 1 is called by different names: "the Anti-Corruption Act," by proponents; and "the Gag Law," by detractors. Obviously these contrastingly normative titles can't really describe the same legislation, so I read the initiative to decide which, if either, sobriquet was more accurate. After my read, I thought it ought to go by, "The Ill-conceived, Poorly-drafted, Sledgehammer-approach, Free-speech Stifling Act that will Cost a Lot."

Section 1 of Measure 1 would make it illegal for any public employee, elected official, or candidate for office to use tax revenues or public resources for campaigning, lobbying, or partisan purposes. The first and third of these types of activities, campaign and partisan purposes, are already illegal for public employees and officials under the Legislative & Executive Branch Ethics Acts, among other laws. Proscription of the remaining activity, lobbying, would represent an unnecessary, costly-to-enforce, and almost certainly unconstitutional change from the status quo.

The language of Measure 1 defines lobbying to include, "undertaking, promoting, or distributing studies, surveys, analyses, descriptions, or other communications using public resources in a manner specifically calculated to induce support of, or opposition to, proposed legislation ...." That means all budgetary legislation and all other bills, at the state and local level, are off limits for all public employees and local officeholders, unless they have been specifically requested to appear to provide information.

Having served many years as a legislative aide and later as a legislative liaison for a department in the executive branch, in addition to a fair amount of other time in the Capitol, I can tell you that silencing local governments and state departments would not help the legislative process.

Measure 1 proponents characterize the initiative as stopping government from lobbying for more government. The actual effect will result in mayors, city council members and school board members not having a voice on bills important to their communities and organizations, unless they pay out-of-pocket to address the Legislature.

The proponents of Measure 1 must have missed the U.S. Supreme Court's decision earlier this year in Citizens United v. FEC, in which the free-speech rights of private corporations neared equality with those of individual citizens. How on earth can one rationally not expect the high court to accord the same courtesy to towns, cities and boroughs, all of which are public corporations? More absurd and disturbing is that violations of the law would be Class A misdemeanors. There are no fiscal notes attached to bills proposed by an initiative, a regrettable fact, because the additional investigatory, prosecutorial, judicial, and corrections resources attendant on creating a vast number of new misdemeanants would certainly be considerable, if the law were enforced at all.

Ballot Measure 1, second section, purports to reduce corruption by restricting access to government contracts to those who employ former legislators or staff and barring contributions from contractors. This would prevent anyone who worked for a contractor, or anyone related to such a person, from supporting a candidate for office directly or indirectly. A person working for a firm with any contract with any public entity that wasn't put out to full bid would need to call and tell his grandmother not to give money to anyone running for school board, assembly, mayor, the Legislature, or other offices. Aside from the fact that this is also blatantly unconstitutional, it does nothing to further the integrity of the public process.

Alaskans should be concerned about how much money is spent and what bills are passed, and who is lobbying to achieve certain outcomes. Forced disclosure about lobbying activity by private interests and contract lobbyists already occurs.

If real concern exists about the lobbying by employees or elected officials of public entities and its connection to government corruption, then an appropriate remedy would be to force more disclosure about the lobbying these people do, instead of unsuccessfully attempting to outlaw it.

If there is a concern about contracts, then increased disclosures are probably also a better way to remedy any actual problem, which Measure 1 would do through its government-contracts database, the only provision of this initiative that isn't a non-starter on its face.

If its proponents really want to address the issue of how public money influences the allocation of public funding and policy in Alaska, while also reinventing state contracting practices, they're going to have to try much harder to get Alaskans to go for it. Alaskans must be informed of the financial costs as well as the effect on their rights to petition their government.

• Ben Brown is a Juneau attorney.

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