Frequently Asked Questions
What is Proposition 54?
Proposition 54 is a constitutional amendment which California’s voters enacted by passing it on the statewide ballot in the November 2016 election.
Prop. 54 enacts new rules for the Legislature’s proceedings to ensure a more transparent, accountable, and orderly process of passing laws.
Typically, transparency laws for local governments and state agencies are written in statute. But Prop. 54 is different. Because Prop. 54 governs the state’s lawmakers, it is written in the State Constitution, which is above the authority of the Legislature. This way, the Legislature can’t change or ignore its responsibilities to remain open and honest with California’s public.
Why is Prop. 54 important?
Before Prop. 54 was enacted, the operations of the Legislature were often secretive and last-minute, where only a few insiders really knew what was going on before it was too late to do anything about it. Legislation was routinely rushed through the process with little to no vetting, and the public had no way to access their State Legislature.
So, Prop. 54 enacted reforms to give the public greater access to the Legislature, and ensure a more transparent, orderly process. Prop. 54 prevents last-minute legislation from getting rushed into law, and requires the Legislature to put all its meetings online so that every Californian can learn about what’s going on if they wish. (The requirement to put meetings online doesn’t go into effect until January 1, 2018, to give legislative leaders time to make the necessary arrangements).
A broad coalition of government reform experts, taxpayer advocates, and others agree Prop. 54 will increase transparency, accountability, and the public’s ability to participate in California’s democracy.
Is the Legislature allowed to pick and choose which parts of Prop. 54 it wants to follow (and ignore the others)?
No, Prop. 54 is now law and a part of the Constitution. This binds the Legislature to comply with every provision of Prop. 54, not just the provisions the Legislature prefers.
After Prop. 54 passed, the Legislature proposed new procedures governing its proceedings, which conflict with Prop. 54. Which one should prevail?
Prop. 54 prevails. Prop. 54 is a part of the California Constitution, the highest form of state law. In contrast, the Legislature’s proposed procedures don’t have any force of law.
The Legislature hasn’t violated Prop. 54 by proposing procedures that are contrary to Prop. 54. Even if the Legislature adopts these flawed procedures, it does not violate Prop. 54, because the Legislature’s stated procedures are irrelevant. The Legislature can write any house rules it wants.
But the problem occurs if the Legislature actually follows those misguided procedures, instead of following Prop. 54 – for instance, by holding a floor vote on a bill before the bill has been in print and online for at least 72 hours. Should the Legislature do this, then its misguided actions would invalidate the very bill it is trying to pass.
This is why numerous organizations are urging the Legislature to fully understand all the rules of Prop. 54 as they were communicated to the Legislature, the voters, and the press, exhaustively throughout last year’s campaign.
How do the Legislature’s proposed procedures contradict the Legislature’s constitutional duty, under Prop. 54, to provide a 72-hour notice of new legislation?
Under Prop. 54, the Constitution now requires the Legislature to post each bill online for at least 72 hours before the bill may be passed out of either house (except for emergencies, as specified). (Art. IV, § 8(b)(2).) A house can amend a bill at any time, but the bill as amended must be posted online for 72 hours before passage. If the Legislature does not follow this requirement before voting to pass a bill, that bill would not be constitutionally passed and would not be eligible to become a law.
Unfortunately, the rules proposed by the Assembly thus far (HR 1) misinterpret this requirement. If applied, the procedures in HR 1 would result in clear violation of the Constitution’s requirements because they do not require 72 hours’ notice prior to voting on Assembly bills that have not yet been approved by the Senate. (Rules 46(c), 64, 76, and 77(b)(2).) Meanwhile, the Senate rules (SR 4) do not contain an explicit 72-hour notice requirement.
If the Legislature does not propose rules consistent with Prop. 54, there is a risk that the Legislature may schedule votes in violation of the Constitution’s 72-hour notice requirements. Any such vote for passage will be invalid, and that bill will be ineligible to become a law. This includes legislation where delay may cause hardship, such as the budget bill. The goal of Prop. 54 is to give voters and legislators transparency, not to inhibit the legislative process; proper implementation can avoid the risk of such disruption.
Each member of the Legislature is constitutionally guaranteed the right to have at least 72 hours to review the final version of any bill prior to a floor vote, regardless of the bill’s house of origin, and the public has the same right. Supporters of Prop. 54 are advocating that the Legislature’s rules should unambiguously reflect that right.
How do the Legislature’s proposed procedures contradict the constitutional right of the people, under Prop. 54, to record public meetings?
Prop. 54 guarantees the right of any person at a public meeting of the Legislature to record the meeting. Additionally, beginning in 2018 the Legislature must record all public meetings and post the recordings online within 24 hours. (Art. IV, § 7(c).)
Under Prop. 54, the only permissible restrictions on the recording of public meetings are “reasonable rules … regulating the placement and use of the equipment for recording or broadcasting the proceedings for the sole purpose of minimizing disruption of the proceedings.” (Art. IV, § 7(c)(1).) The Legislature may only adopt such rules “by concurrent resolution adopted by … two-thirds of the membership of each house, concurring, or by statute.” (Art. IV, § 7(c)(5).)
But the Legislature’s proposed procedures mistakenly direct the Committee on Rules to adopt such rules (current Assembly Rule 25(b)). However, any rules adopted only by committee would have no effect, as they would not comply with the Constitution’s requirement of a two-thirds vote concurring in each house. Similarly, the current Senate Rule 21.8 restricts recording by the press; this rule also lacks validity because it was not adopted by a two-thirds vote concurring in each house.
If the Legislature wishes to regulate the placement and use of recording or broadcasting equipment, it must adopt those rules in compliance with the Constitution’s requirements: that is, by two-thirds vote concurring in each house, or by statute. That is why a diverse coalition of government experts and other groups are encouraging the Assembly and Senate to update their rules, consistent with the Constitution’s procedural requirements as enacted in Prop. 54.
How does Prop. 54 benefit the average Californian?
The Legislature passes hundreds of new laws every year affecting average Californians. These laws are supposed to be enacted through a process that is open to the public so that average Californians can make their voice heard.
But historically, interest groups that hire lobbyists have enjoyed a monopoly over public information which is used to influence legislation. Off-the-record legislative meetings attended only by professional lobbyists, as well as the common practice of rewriting legislation moments before it is voted on, were used regularly to exclude the average Californian from the democratic process. The public couldn’t know who to hold accountable because the process is so opaque.
That is why Prop. 54 now gives the public access to every legislative meeting by posting them online. Prop. 54 also ends the practice of holding floor votes on last-minute bills, so that every lawmaker can be held accountable by their constituents for how they vote on such measures. Prop. 54 gives average Californians the information they need to participate in a political process that, currently, has been dominated by special interests.
How does requiring a 72-hour notice period to pass legislation increase transparency?
Before Prop. 54 was passed, legislators could make any change to legislation and put it to an immediate vote, often at the request of special interest-funded lobbyists. This included adding hundreds of pages of new language, and having lawmakers vote on it before anyone has time to read it. In fact, new laws were secretly enacted this way every year.
Prop. 54 now requires the Legislature to wait at least 72 hours after a bill has been amended before either house can vote on it. This rule allows lawmakers to actually read what they are voting on. Also, during those 72 hours, the bill must be posted online so anyone can read it and contact their representative with any concerns or questions.
Importantly, this 72-hour notice period only works if it applies to a vote on the floor of either house. That is why Prop. 54 was carefully crafted and reviewed by legal experts to have this meaning. And it is why the proponents of Prop. 54 communicated this particular point exhaustively and thoroughly to the voters, the press, and even the Legislature, during last year’s campaign to pass Prop. 54.
Unfortunately, the Legislature has proposed its own procedures which seem to suggest the 72-hour rule only applies to the second house in which a bill is voted. This misinterpretation not only violates the clear and explicit meaning of Prop. 54 – It also fails to ensure transparency. It would allow the first house of the Legislature to continue sneaking last-minute changes into bills in order to pass secret legislation.
How does the 72-hour notice period increase accountability?
Before Prop. 54 was passed, lawmakers often voted on legislation they didn’t get time to read. So, if something harmful got passed into law, it was difficult to hold your legislator accountable. This happened constantly.
Prop. 54 changed that by guaranteeing every lawmaker has at least 72 hours to review new legislation before it can be passed by either house of the Legislature.
For example, let’s say a bill is introduced in the Assembly and it goes through the Assembly’s committee process to arrive on the Assembly floor. Then, somebody amends the bill to add 100 pages of new language. Under the system before Prop. 54, the bill could be put to a floor vote and immediately passed by the Assembly before anyone has time to read and understand the 100 new pages, which is why special interests used this maneuver to get their political favors passed.
But now that Prop. 54 is law, the Assembly must post the new version of the bill online, including the 100 new pages, for public viewing. Only after 72 hours have passed, with the new version of the bill online for public viewing, can the bill be voted on the floor. In other words, the Assembly must keep the bill online for 72 hours, in its final form, before being able to pass it.
This 72-hour period gives every legislator time to read the new version of the bill and hear from their constituents about it – before being asked to vote on it. So constituents would be able to hold lawmakers accountable for the vote they ultimately cast.
But this raises another serious problem with the Legislature’s misinterpretation of Prop. 54. Unfortunately, the Legislature has proposed its own procedures suggesting the 72-hour rule only applies to the second house in which a bill is voted.
In addition to violating the clear meaning of Prop. 54, this misinterpretation fails to give the public any way of holding their representatives in the first house accountable. That is, under the Legislature’s flawed interpretation, the leaders of the first house could still require lawmakers to vote on a bill mere minutes after 100 new pages have been inserted into it. Nobody would have time to read it. So if they ended up passing a harmful bill, it would be difficult for their constituents to hold their representatives accountable, since they didn’t get time to read it.
How will publishing video records of legislative meetings increase transparency?
Before Prop. 54 was passed, the Legislature held numerous meetings where legislation was amended, passed, or voted down. Although the California Channel broadcasts and webcasts some of these meetings, many other meetings go completely unrecorded.
It’s just not realistic to expect citizens from all over California to travel to Sacramento every time the Legislature takes up something they care about. So ultimately the only ones with access to these meetings are lobbyists and others funded by special interests.
Publishing video records will allow every Californian to watch these legislative meetings and create a record for interested Californians to check to see how a law got enacted or blocked.
Is requiring a 72-hour notice period to pass legislation a new requirement?
It is a new requirement for California, but a similar notice period for legislation has been required in the states of New York, Idaho, Hawaii, Pennsylvania, and South Carolina for many years. In fact, New York and Idaho have required a 72-hour notice for over a hundred years!
Local governments in California have provided a similar notice for their own legislative meetings for decades. State law prohibits a city council, county board, or other local board from meeting to do business unless it’s posted a complete agenda at least 72 hours before the meeting, describing every item. Local governments routinely comply with these requirements every time they meet.
More than two-thirds of the current members of the California Legislature previously served on local legislative bodies subject to these rules so they should already be accustomed to getting work done in the Legislature under the notice period created by Prop. 54.
Will a 72-hour notice period create a burden in cases of emergency when lawmakers need to act quickly?
No, Prop. 54 allows the notice period to be waived in cases of emergency. For an urgent piece of legislation, the Legislature may waive the requirement by a two-thirds vote of both houses, provided the Governor has certified the legislation is necessary to address a state of emergency.
What about instances where a quick fix is needed to a bill before it goes to a vote? Will even minor changes require waiting a whole 72 hours before it can be voted on?
“Quick fixes” are sometimes used by special interests to sneak self-serving provisions into bills just before they’re voted into law. We believe it’s important that everyone has time to read the bill, including the quick fixes, before it’s enacted.
Because most bills don’t go into effect until the 1st of January after they were enacted, waiting another three days to pass a bill won’t have any impact on how quickly it goes into effect. In other words, if the bill doesn’t become law until January 1, then does it matter whether it was passed on September 1 or September 4?
Of course, in cases of emergency, the Legislature passes an “urgency” bill that goes into effect immediately. But, under existing constitutional provisions, passing an urgency bill requires a two-thirds vote of the Legislature. So that same two-thirds can vote to waive the 72-hour notice period as a matter of emergency.
Does Prop. 54 change the number of votes required for the Legislature to pass legislation?
No, the vote requirements for legislation stays the same. Ordinary legislation requires a majority vote of both houses of the Legislature to pass. Urgency legislation (which takes effect immediately) requires a two-thirds vote of both houses.
But Prop. 54 requires lawmakers to wait at least 72 hours before passing a bill that’s just been amended, so that everyone has time to read it. Prop. 54 also provides that a complete video record exists of all the legislative proceedings that are supposed to be open to the public.
How much will this initiative cost to implement? Paying for cameras, maintenance, other expenses?
Prop. 54 will not raise costs to taxpayers. Instead, any costs must come out of the Legislature’s current budget, which is capped by the Constitution so higher costs cannot be passed on to taxpayers, but must be absorbed by the current legislative budget.
The cost could range from minor to zero, according to the nonpartisan Legislative Analyst and California Department of Finance, depending on how the Legislature chooses to implement it. For example, the Legislature could choose to continue using the free and independent services of CalChannel, which already records most (but not all) of the public hearings.