The House, Thursday, February 14, 2019

Rep. Katherine Prudhomme-O'Brien (R - Rock 6)Thank you, sir. This issue came to my attention when I read an editorial at InDepthNH.com from Jim Splaine, the Honorable James Splaine from Portsmouth, former State Representative and Senator where he warned of the importance of keeping these offices impartial. I agreed with him and I filed this legislation as soon as I was able to. Ken Gidge cannot be here today with us. He's out having some health issues, but he called prior to my call and he is the prime sponsor of this bill, so it's been a real pleasure to work with Democrats on this bill and to work in a bipartisan fashion in that matter and I hope I can do that again throughout my time here. Now yesterday I had the good fortune to speak to the former Congressman from Maine, Bruce Poliquin. Prior to being a Congressman, he was the Maine State Treasurer. He told me that before he was the Maine State Treasurer he was in the business world and he was in the pension management business. He was speaking to the Maine State Treasurer, Samuel Shapiro about pension management services when Shapiro told him that he had a political action committee that Poliquin could donate to. The PAC was intended to help elect the same state legislators who would later vote for him for State Treasurer. Poliquin told me that his jaw nearly hit the floor and he said, "It was the most unethical thing I could imagine." Two other states elect these officers in the same way New Hampshire does; Maine and Tennessee. In Maine in the mid 90's they outlawed political action committees being formed by people running for this office. In Tennessee they have not officially outlawed it, but recently their Secretary of State, Tre Hargett said that he would never do such a thing because his legislature would never allow that. It would instantly be a "no" they would not vote for him. So, I ask you to show your love for the best interest of the people of New Hampshire on this Valentine's Day and press the red button.

Speaker ShurtleffWould the member yield to a question? Rep. Baldasaro you are recognized for a question.

Rep. Al Baldasaro (R - Rock 5)Thank you, Mister Speaker. Thank you, Representative, for taking my question. If we support the committee vote, does this mean that we're, that office is for sale because they can keep raising all sorts of money like they did in the past and try to buy that office?

Rep. Katherine Prudhomme-O'Brien (R - Rock 6)My highest interest is keeping this an impartial office, the office of Secretary of State and the office of Treasurer. My example from Maine shows that this is not a New Hampshire issue, this is just an ethical issue that other states deal with.

Speaker ShurtleffThis is an education moment. I just want to remind my good friend from Londonderry a question of that nature is really not appropriate in this body to refer to any elected office being for sale. So, I just remind people to be very circumspect when they come up here to ask a question that it's in a due form that we normally use and go by in this body. Thank you. The Chair recognizes the member from Goffstown, Barbara Griffin to speak to the minority on this bill.

Rep. Barbara Griffin (R - Hills 6)Thank you, Mister Speaker. Thank you members and I ask you to overturn the recommendation of the committee and I do so with the utmost respect for the work of this committee and I do so because I think there is a fundamental misunderstanding of what we are talking about here and I think the little discussion we just heard here explains that because there was a reference to elections. We are talking about elected officials. The reality is that we are not. We're not. If you turn to page 14 of your calendar you will see a couple of cases cited by the majority in support of the committee's position. They site those cases in support of positions in regard to elections, but that's not applicable to what we are talking about here because this bill is about the raising of money by and for persons for the positions of Secretary of State and Treasurer and those are governed by a different rulebook. We are all governed by rulebooks, right? We've already had a lot of discussion this session about who has control over the rules, lots of rules. Well the first rulebook is the constitution and the New Hampshire Constitution sets up those offices as constitutional offices. They are not elected. If you read the election statutes and I know it's something you are all going to do tonight, last night, all the time. They are not elected offices. So, the second rulebook that you need to look at in conjunction when considering this bill is the rulebook on elections because the majority would have you think that the rulebook on elections applies and it doesn't. There is a different rule for candidates and incumbents for offices that are elected and constitutional officers and you know what the difference in that rule is? If you're an incumbent or you are running for office, it needs to be for an election because otherwise you are accepting gifts and there's an appearance that perhaps not everything is on the up and up. In setting up the constitution we have specifically taken the office of the Secretary of State and Treasurer out of the election process. That is so confusing to everybody. I understand it. It is so confusing that in regards to our most recent Secretary of State's selection, we had a candidate who did form a PAC and did advertise and did spend money and it was so confusing that the week before the general election he sent out an email saying don't be confused when I'm not on the ballot in an election because I'm not really being elected by you, I get selected a different way. That's how confusing this process is. Under our current rules, as an incumbent Secretary of State, you are prohibited from accepting money and you are prohibited from forming a PAC because a PAC is for an election because the raising of funds for an election is for an election. For those of you who formed committees, you know you had check off a box that said what election are you running for. The Secretary of State is not on any of those boxes. The Treasurer is not on any of those boxes because the offices we are talking about are not selected by the people for whom this House stands, the peoples House. Those offices are selected by us and to allow the raising of funds for such an office by someone does not level the playing field because the current office holder or even you as an incumbent could not raise money because it is not an election. So, this bill if the majority recommendation is overturned would make it clear that we understand what our constitution says, that we understand what our election laws say, that those selections are done by us the elected people who can raise funds under the rules of elections for a constitutional office because those constitutional offices should not be beholden to the fund-raising process. I ask for your support in overturning the majority's recommendation so that another motion can be made that would be consistent with the constitution and would indeed level the playing field for these offices. Thank you.

Speaker ShurtleffWill the member yield to a question? The member does not yield. The question before the House is the majority report that this bill is Inexpedient to Legislate. The House recognizes the member from Keene, Rep. Pearson.

Rep. William Pearson (D - Ches 16)Thank you, Mister Speaker. I'd like to first agree with my colleague, the member before me and state that our first rulebook is indeed the US Constitution. And I want to disagree and say that PACs aren't simply for elections, they are for 1st Amendment free speech and I'm glad that my colleague, the member before me raised the cases that I cited in my blurb, I think we are calling them reports now, but I'm glad she raised those citations because I'm going to read a little bit from Buckley v. Valeo right now which is really the centerpiece when we're talking about 1st Amendment speech in the political process. In the court in 1976, the Supreme Court that is, said that the real issue here is whether or not the specific legislation, the legislature, us, has enacted interferes with 1st Amendment freedoms or invidiously discriminates against non-incumbent candidates and minor parties in contravention of the 5th Amendment. They go on to say that although the 1st Amendment protections are not confined to the exposition of ideas there is practically universal agreement that a major purpose of the amendment was to protect the free discussion of governmental affairs, of course including discussion of candidates. That would, I presume, candidates for Secretary of State. There is practically universal agreement again that a major purpose of - sorry I just read that. It is of particular importance that candidates have the unfettered opportunity to make their views known so that the electorate, that being us, may intelligently evaluate the candidate's personal qualities and their positions on bio public issues before choosing among them on election day, something we all participated in a few weeks ago. Now, courts will view any restrictions on these 1st Amendment rights with strict scrutiny. This body must be able to prove that these restrictions are narrowly tailored and that they address a compelling state interest. I don't believe such is the case here. I posit that these restrictions are both over inclusive and under inclusive and that there is really no compelling state interest in limiting these as we have seen through Buckley v. Valeo and its progeny. Again, Buckley v. Valeo, which I have quoted already extensively sees these issues that the minority is raising as being remedied through the reporting and disclosure requirements and that is what we already do in this fine State of New Hampshire. The mere growth and the cost of elections as what was cited by the minority is not in itself a compelling interest to levy these sorts of restrictions. The minority cites two states, Maine and Tennessee, as states that New Hampshire should follow. I wish they agreed with that for some of the great things that Maine has already done with regards to ranked-choice voting and publicly funding elections, but here they do cite Maine for this and I just wanted to highlight the differences between Maine and Tennessee and New Hampshire. Since 1976, Maine has seen six different Secretaries of State over seven different terms. New Hampshire has seen one over twenty-two. Since 1976, again Tennessee has seen six different Secretaries of State. Again, New Hampshire still only seen one. Our states are different, not just in how we limit our Secretary of State, but also in our electioneering statutes. If you look at the State of Maine, they prohibit the Secretary of State from electioneering. This State, New Hampshire, explicitly exempts the Secretary of State from electioneering so I would posit that this piecemeal approach doesn't help anything and if indeed if we were to adopt it, we would want to amend that electioneering statute as well. I don't say any of this to imply that our Secretary of State isn't deserving of his long tenure, quite the contrary. In fact, I respect Secretary Gardner immensely for what he has done for the State of New Hampshire and indeed myself. His office has always been open and helpful to me as I'm sure it has been to all of you. Rather, I talk about the above to highlight the incumbency advantage the Secretary of State enjoys. His office is feet from our cubbies, really and his door is always open. He has tremendous weight both in National and local media and more than that he has maintained the integrity of New Hampshire elections and our First in the Nation Primary status. These reasons and more illustrate why Secretary Gardner has remained in his office for so long. For those who have been hibernating this winter, Secretary Gardner is still our Secretary of State despite a robust process election cycle that just happened. So, despite not having these restrictions on the books, rightfully so Secretary Gardner enjoys many incumbency advantages. Secretary Gardner does not need this legislature to further advantage his office through the suppression of plainly political speech. I know the Secretary of State can win elections based purely on the merits. Our current one has done so for 21 elections so far and with that I hope you support the majority committee recommendation of ITL. Thank you.

Speaker ShurtleffWill the member yield to a question? Rep. Smith you are recognized for a question.

Rep. Timothy Smith (D - Hills 17)Thank you, Mister Speaker. I have two questions. I hope you will take the second. My first question is does the language in this bill distinguish between a regular PAC and a candidate committee?

Speaker ShurtleffDoes the member yield to a follow-up? The member yields.

Rep. Timothy Smith (D - Hills 17)That seems like a serious flaw if it doesn't make that distinction. If this bill were to pass, would this allow someone to run for Secretary of State and still raise money for postage to send his letters and do whatever they are going to do for that and spend money to run for an office, a constitutional office without having any duty whatsoever to report who is funding their campaign?

Rep. William Pearson (D - Ches 16)I'm not sure I can answer that having not looked at it specifically. I can't answer that without looking at the statute. Sorry.

Speaker ShurtleffWill the member yield to another question? Rep. Wuelper is recognized for a question.

Rep. Kurt Wuelper (R - Straf 4)Thank you, Mister Speaker and thank you for taking my question. Do you believe that the Secretaries of State in Maine or in Tennessee have less incumbency advantage than what is in New Hampshire at this time?

Rep. William Pearson (D - Ches 16)Thank you for the question and again as I referenced the electioneering statutes, I think that they have less of an incumbency advantage. Our current Secretary of State is exempt from our electioneering statute which gives them an immense ability to lobby us as we saw in the most recent Secretary of State election.

Speaker ShurtleffDo you yield to a follow up? You may ask your question.

Rep. Kurt Wuelper (R - Straf 4)So, I'm guessing that you are suggesting that the Secretaries of State in those other states don't have the opportunity to lobby but it seems to me that since they have higher turnover and they preclude PACs, that that would say the PAC is not necessary for getting elected as an outsider.

Rep. William Pearson (D - Ches 16)Thank you for the. I'm not sure I heard a question, but I will say that our Secretary of State has done a great job and there is a reason he has had such a long tenure. I'm not trying to detract that from him at all. I'm simply saying that the process as it stands now doesn't need the revision that the minority seems to think it does. We've got a long day. I'm sorry.

Speaker ShurtleffA division vote has been requested. Members will take their seats. This will be a division vote. A roll call has been requested. Rep. Griffin has requested a roll call. That is sufficiently seconded. This will now be a roll call vote. The question before the House is the majority recommendation that this bill is Inexpedient to Legislate. The Chair recognizes Rep. Lang for a parliamentary inquiry.

Rep. Timothy LangThank you, Mister Speaker. Mister Speaker, if I know that the impartiality of this office of both the Secretary of State and the Treasure are tantamount to our citizens and not only our citizenry, our elected officials in this office and if I know the reason for that is because this office is responsible for the recounts and recently in a Belknap County recount we went from a Democrat who won by 10 votes to a Republican who won by one vote and I would question a Secretary of State who may have received money from one side or the other and how that vote might have been counted and how it was done. And, Mister Speaker if I further know that the Secretary of State's office is also responsible for the corporate division which investigates securities frauds and a Secretary of State who received campaign funds from the financial industry may, may be called into question, not that they would, but it presents, I feel it would present an appearance of impropriety and I want to avoid that at all costs for our citizens so they can have faith in our government, faith in our election system, faith in our treasury.

Speaker ShurtleffThe member will suspend for just a moment. In the PI, we need to hear a few more question marks in your comments.

Rep. Timothy LangIf I believe all that Mister Speaker that I want that integrity, would I now push the red button so another motion can be made?

Speaker ShurtleffThe question before the House is the majority recommendation that the bill is Inexpedient to Legislate. The Chair recognizes Rep. Ley for a parliamentary inquiry.

Rep. Douglas Ley (D - Ches 9)Thank you, Mister Speaker. Mister Speaker if I know that participation in democracy through political contributions is protected by the 1st Amendment. And if I know that this bill would unconstitutionally restrict the speech rights of those who seek the office of Secretary of State or State Treasurer. And if I know that this bill does not create a level playing field, but instead would codify and enshrine advantages to incumbency, would I now press the green button to vote yes on the committee report of ITL? Thank you.

Speaker ShurtleffThe question is on the majority recommendation that the bill is Inexpedient to Legislate. If you are in favor, you'll press the green button. If you are opposed, you'll press the red button. Voting stations are now open for 30 seconds. Have all members present had an opportunity to vote? The House will be attentive to the vote. With 236 voting Yea and 139 voting Nay, the motion is adopted.