California legislative leaders resist open-government law

San Francisco Chronicle

By John Diaz, April 7, 2017


California voters can thank themselves that they had at least a few days to see the contents of a $52 billion transportation bill before it was passed by state lawmakers late Thursday night. In years past, the governor and legislative leaders might have rushed a measure so fraught with political peril in the last hours of a session, with a flurry of changes made before most rank-and-file representatives even had a chance to read the final version.

Proposition 54, supported by voters in all 58 counties, requires a bill to be in print and available online for 72 hours before a vote by the state Senate or Assembly. Violate that rule, the constitutional amendment dictated, and the law is invalid.

It was one of the more important political reforms in years, bringing much-needed transparency to the legislative process.

In the case of the transportation bill (SB1), Californians and their elected representatives in Sacramento were able to know ahead of passage how this bill would hit their pocketbooks — a 12-cent-a-gallon increase in gas taxes and up to $175 more in vehicle registration fees — and how it would offer truckers some relief from future regulations. It was an imperfect and controversial bill, with something to hate for conservatives and for environmentalists.

No legislator can later claim he or she did not have a chance to review SB1.

But there is no doubt that the Legislature’s leaders, especially Assembly Speaker Anthony Rendon, are not exactly thrilled about having to do the people’s business in plain view. The rules they have set to implement Prop. 54 are setting up a collision course with the voters’ clear intent to assure a three-day review of pending legislation and to guarantee that video of all proceedings should be available online.

A coalition of government-watchdog groups sent a letter to all 120 Senate and Assembly members last week warning that failure to comply with the voters’ mandate could “inadvertently result in the invalidation of bills that the Legislature wishes to pass.” The signatories included nonpartisan reform groups (Common Cause, California Forward, League of Women Voters) and more ideologically defined groups from the left and right (CalPIRG, Howard Jarvis Taxpayers Association, National Federation of Independent Business).

Of particular concern was the Assembly’s attempt to interpret the 72-hour rule more narrowly than was presented to California voters. Under the Assembly rule, the 72-hour requirement would apply only to bills that had previously passed the Senate and were on their last stop before the governor.

Wrong, wrong, wrong, say the promoters of Prop. 54.

“What they have put in place so far concerns us,” said Gavin Baker of California Common Cause.

The clear intent of the measure, they note, was to apply the transparency rule before final passage of any bill reaching the Senate or Assembly floor.

“The fear is that some legislator might step into a trap not knowing the obligation,” said Jon Coupal, president of the Howard Jarvis Taxpayers Association.

Kevin Liao, a spokesman for Rendon, insisted that the Assembly rule is “consistent with the provisions of Prop. 54.”

But keep in mind: Violation of the 72-hour rule is not just going to result in a public shaming of the Assembly for ignoring it. Opponents of a bill that passed without due public review would have the opportunity to challenge it in court. James Mayer, president and CEO of California Forward, said the proponents of Prop. 54 were careful to “establish a record of intent” that the rule would apply to all bills reaching the full Senate or Assembly. If the Legislature were to “play games” with the rule, Mayer said, he “absolutely” would expect a lawsuit to result.

“We’re hoping the letter is preventive,” Mayer said. “But there is a recognition that it sometimes takes a court to affirm” the meaning of a law.

The Howard Jarvis Taxpayers Association has often been frustrated by last-minute bills that emerge from the backrooms of the State Capitol, according to Coupal.

“It’s not that we can stop them … but at least it gives us a chance to see what they are doing,” Coupal said, acknowledging the Democrats’ supermajorities in each house. “It’s like when the locomotive is coming down the tracks you can see it … instead of being hit from behind with your earbuds on.”

If Prop. 54 is enforced as intended, all Californians will have greatly expanded opportunities to view the legislative railroad. Starting in 2018, the Legislature must record all public meetings and archive the recordings online within 24 hours, the watchdogs’ letter noted. It also gave Californians a sweeping right to record public meetings. Any restrictions must be justified by “the sole purpose of minimizing disruption of the proceedings” and approved by a two-thirds vote of both the Senate and Assembly.

Legislators seem to think they can ignore this rule. Both the Senate and Assembly have asked their respective Rules Committees to decide the ground rules for audio and video recordings. As the watchdogs warned, the plain language of Prop. 54 supersedes any rules adopted by a legislative committee.

“The right to record legislative hearings is important to California voters,” said Helen Hutchison, president of the League of Women Voters of California. “We received that right through passage of Prop. 54. The Legislature should honor this provision, not just because they are required to do so, but also because their constituents have made it clear they want it.”

The voters have spoken. The watchdogs are watching. Legislators have been duly warned that they flout the law at their peril.

John Diaz is The San Francisco Chronicle’s editorial page editor. Email: jdiaz@sfchronicle.comTwitter: @JohnDiazChron

Will politicians heed the will of the voters?

Prop. 54 was passed by 65.4 percent of California voters in November 2016.

What it does:

Requires that a bill be in print and available online for at least 72 hours before a vote in the Senate or Assembly.

Requires audiovisual recordings of all legislative proceedings, with posting and archiving on the Internet.

Allows anyone to record legislative proceedings by audio or video means, unless they would pose an undue disruption.

Allows recordings of such hearings to be used for any legitimate purpose, without a fee to the state.

Why it was needed:

California legislators have demonstrated a growing propensity for jamming through bills, especially at the end of session, with little or no time for the public to review or comment. These often were bills being pushed by the leadership on behalf of a favored special interest. In many cases, rank-and-file lawmakers didn’t even get a chance to read a bill before they voted.

Why voters had to act

For years, legislators rejected any and all such reforms. A staff analysis of a 2013 effort (ACA4) was laughable in its absurdity. The staff warned the 72-hour waiting period would allow “powerful special interests” to torpedo “carefully crafted agreements” — when, in fact, the backroom deal was the process for the well-connected group to get their way. The Legislature was given one last chance to pass a 72-hour rule after the Prop. 54 initiative qualified for the ballot. But legislators proved unwilling to produce an alternative acceptable to the initiative proponents. So it was on to the ballot, where the voters had the last word.