Legal Alerts Dec 14, 2016

BB&K Advocacy Brief: Proposition 54 and Local Governments

Is Transparency Law a Game Changer?

The intent of Proposition 54 is to prevent legislation that mysteriously appears in the final hours of session by requiring bills to be published online for three days (72 hours) before a final vote. It passed with a commanding 30-point lead and its proponents believe it will change the way the California Legislature has to operate. In this Brief, we’ll look at how it will — and will not — affect the way local governments interact with the Legislature.
Let’s start with current law. The state Constitution already says no bill may be passed until it is “in print” and distributed to the members of the Legislature. That minor hurdle leaves the door open to members being presented with massive bills hours before the end of the legislative session. There are requirements intended to allow for the proper consideration of a bill, such as a four-day file notice requirement for policy committees to hear a bill, or the requirement to read a bill three times before a vote on the floor of either house. If these provisions were applied as intended, there would have been no need for Prop. 54, but all these safeguards suffer from the same weakness: they can all be waived.
Enter Prop. 54, which states that no bill can “pass” until it has been published on the Internet for 72 hours in its final form, and this cannot be waived unless there is a declared emergency. (The word “pass” is in quotes for a reason.) To parse out what that means requires a short primer on legislative procedure. When a bill is introduced in one house, for this example let’s use the Assembly, it must go through the committee process in the “house of origin” and then be passed over to the Senate (the “second house”) where the process repeats. If ANY amendments are taken in the second house, even if the amendment simply adds a comma to a sentence, it must come back to the house of origin for a “concurrence” vote on the amendment(s) before the bill is sent to the Governor.
There’s a catch with the concurrence vote that makes this relevant to Prop. 54. On concurrence, a bill cannot be amended — not even to correct the grammar. If the house of origin concurs in the amendments, the bill will “pass” to the Governor. If no amendments are made in the second house, which rarely happens, but it could be worked out by leadership, then the bill goes straight to the Governor from the second house.
You’ve probably figured out that the definition of “pass” will have a big impact on how Prop. 54 will change the Legislature. If “pass” means both the floor vote that sends a bill from one house to the other house, AND the final vote that sends a bill to the Governor, then Prop. 54 will have a huge impact on how the Legislature does business. If, however, “pass” only refers to the very last vote that sends the bill to the Governor, then Prop. 54 will still have a significant impact on the legislative process, but it will leave the door open for shenanigans during the last week of session. For example, amendments could be stuck in a bill at midnight three days before the end of the session and sent immediately back to house of origin for a concurrence vote. Prop. 54 would require it to sit for 72 hours, but it wouldn’t matter much because the bill couldn’t be amended — a fait accompli.
The drafters of Prop. 54 are adamant that “pass” means any final floor vote on a bill. They argue in an open letter to the Legislature that this is the only “internally consistent” interpretation. That’s far from an airtight argument, and the opposing side has some good points. Where the word “pass” was used in the Constitution before Prop. 54, it only referred to the vote that sent a bill to the Governor. Other words like “acted on” or “heard” were used to refer to other types of votes. As a result, we won’t really know the impact of the initiative until we see the new procedural rules for the 2017-2018 session. The rules are adopted at the start of each new two-year legislative session. The expectation is that the legislative leaders will not tempt fate and adopt rules consistent with the intent of the proponents, but we’ll have to wait and see.
With this under our belt, it’s time to ask the question that really matters: How will Prop. 54 affect the prospects of municipal interests when lobbying the Legislature? The best short answer, unfortunately, is “not much.” The reason is that the fights where local government interests have the best chance of succeeding are in the policy committees, especially the very first policy hearing on a bill, and Prop. 54 does not affect the committee process. Local governments often feel outgunned by special interests because procedural requirements, such as the Brown Act, delay participation in lobbying efforts at critical times.
When a special interest is planning a bill that’s bad for local governments, the first version of the bill that the public sees may be a shell with no substantive language; the real language is dumped into the bill 10 days before a policy committee hearing. Most local government procedures can’t work fast enough to respond in an effective manner. Two weeks before a bill is heard in its first committee is the critical time for bill opponents to be active. If a special interest wants to use all the tricks of the trade, they may get a bill through the first committee before it can even be put on an agenda of a local government to adopt an oppose position. Even when a city can get an oppose letter submitted before a hearing, the votes may have been secured weeks before. For a municipal interest to have a fighting chance against a sophisticated special interest group, it will probably have to adopt changes to their procedures.
To be fair, Prop. 54 will impact the really big issues that affect municipal interests — think redevelopment reform — and that’s obviously important. It will be some comfort to know that special interests will have a more difficult time springing surprise attacks. But local governments can do more for themselves by coming up with ways to make their government relations operation more nimble than Prop. 54 could ever hope to do.

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