Putting the Legislature on (72-Hour) Notice

In California, a bill can start in the Legislature with a title like “The Prosperity For All Act,” yet end up being a law regulating the manufacture, sale and use of dog leashes or floor tiles. Or a law that adds another tax. Or a law that does whatever lawmakers want it to do, with none of its provisions being even remotely related to its original title.

The mechanism for this misdirection is called “gut and amend,” and it’s such an accepted drill in Sacramento lawmaking that the phrase is included in the Legislature’s Glossary of Legislative Terms. It occurs, says the guide, “When amendments to a bill remove the current contents in their entirety and replace them with different provisions.” These substitute bills don’t get the scrutiny all legislation should receive in committee hearings.

One of the worst examples of “gut and amend” was 2014’s Proposition 1. It began its legislative life as Assembly Bill 1471 pertaining to fireworks sales before becoming a law authorizing a ballot measure to issue $7.5 billion in water bonds. Deceptions such as this promote murky legislating, which produces poor public policy.

There may be light coming to the lawmaking process through the Legislature Transparency Amendment ballot measure on Nov. 8. If the initiative – the product of former lawmaker Sam Blakeslee and Charles Munger Jr.’s longtime efforts – is authorized for a constitutional amendment, the Legislature will be prohibited from passing a bill until the text has been in print and published online for 72 hours prior to the vote.

The amendment would also, says the secretary of state’s office, require the Legislature “to make audiovisual recordings of all its proceedings, except closed session proceedings, and post them on the internet.” It further “authorizes any person to record legislative proceedings by audio or video means, except closed session proceedings.” The recording can be done “without payment of any fee to the state.”

This last provision is an important safeguard against legislative tyranny. With any member of the public free to record legislative proceedings, lawmakers will be unable to censor what is recorded, such as a committee chair cutting off another member from asking questions. The public also has the right to re-broadcast recordings for any legitimate purpose. Under current law, it’s a misdemeanor to use legislative proceedings for commercial or political purposes. That will no longer be the case.

The state Senate has passed its own version of the initiative – Senate Constitutional Amendment 14 – but don’t be fooled. It is a diluted rendering that gives lawmakers opportunities to dodge the bright light of day.

If approved by voters, the transparency amendment won’t end gut and amend, but it will compel more honest, open lawmaking across the board. Legislators working under these constraints won’t be able to so easily mislead the public, particularly at the end of sessions when laws are rammed through while the media and public are in the dark.

Support for the amendment ripples across the political spectrum. For instance, Common Cause, the California Forward Action Fund and the League of California Cities, all of which are from the left, are on board, as are the California Taxpayers Association, the California Chamber of Commerce and the National Federation of Independent Business, on the right.

Among many other supporters are the California Business Roundtable, the League of Women Voters of California and the California State Conference of the NAACP. Two Democrats have even introduced separate legislation that, together, would hold lawmakers to a similar standard.

Jon Coupal, president of the Howard Jarvis Taxpayers Association, another supporter, believes that if the 72-hour rule been in effect over the last decade, a lot of poor public policy would have been stopped. He said the way the Legislature has operated for decades has been “a huge disservice to not only the public and the media, but to legislators themselves, who have not had a chance” to read bills before voting on them.

The California Legislature’s reputation for slinking in the shadows rankles. The bipartisan group Hold Politicians Accountable says “special interests have too much influence in the California Legislature, locking average voters out of the process by striking backroom deals to pass legislation at the last minute without any public review.”

California needs a fresh direction. It should be a model of government openness that the rest of the country can follow. The sanitizing effects of sunshine would sharply cut the stream of sloppy public policy that’s been flowing from Sacramento for decades – and taking the rest of the state downstream with it.

Nothing contained in this blog is to be construed as necessarily reflecting the views of the Pacific Research Institute or as an attempt to thwart or aid the passage of any legislation.

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