Would ACA 25 Greenlight a Legislative Power Grab During State of Emergency?

Kiefer Sutherland taught us in “Designated Survivor” the importance of having strong processes in place to ensure continuity of government during an extreme crisis.

Spurred on by the coronavirus, lawmakers are trying to put a legislative emergency contingency plan in the State Constitution.

If approved by voters, Assembly Constitutional Amendment 25, by Asm. Speaker Pro Tem Kevin Mullen, D-San Mateo, would allow legislators to participate and vote in legislative proceedings remotely – including proxy voting – during a state of emergency.

Sounds reasonable, right?  There should be a provision to allow the legislature to operate in an alternative way during an extreme emergency.  However, there are two big controversies with ACA 25.

During the June 10 debate, more than one Republican lawmaker questioned its overly-broad language.  What the Assembly Floor Analysis calls a “state of emergency prevent(ing) the Member from safely attending the proceeding in person” is surely open to interpretation.

It appears that any state of emergency declared by the Governor or President – and in any part of the state – could trigger ACA 25’s provisions.  A state of emergency declared in Ventura County for a flood doesn’t really justify the use of remote and proxy voting provisions hundreds of miles away in Sacramento.  There are also concerns over how long states of emergency are in effect – and when, and if, they ever really end.

Such broad language and open questions give credence to the GOP fears.  Clearly, ACA 25 should only be applicable in very limited, extreme circumstances.

The other controversy is about proxy voting.  If a Member can’t safely travel to Sacramento to vote during a state of emergency, ACA 25 would not only allow remote voting, and also for a Member to authorize another lawmaker to cast their vote for them.

It is often unstated, but we already have a form of proxy voting called “ghost voting.”  In the Assembly, where electronic voting devices are used, a member’s seatmate frequently push their voting buttons for them during a vote.  Custom allows this as long as the Member is still physically present in the chambers.  It’s technically against the Assembly Rules and is probably unethical.

There have been some very notable examples of proxy voting being abused and votes being cast against the Member’s wishes.  The most notorious case came in 2005 when then-Sen. Carole Migden pushed the button of her Assembly colleague Guy Houston in favor of a bill he opposed.  The San Francisco Chronicle reported in 2008 on another incident when then-Assemblyman Kevin de Leon cast a vote for his then-colleague Assemblywoman Mary Hayashi opposite of her position on the bill.

Who is to say that such abuse wouldn’t happen under a proxy voting system where the Member wouldn’t even be in town to ensure their vote was cast as they wished?

The controversy over ACA 25 comes down to a lack of trust.  Most Republicans in the Legislature simply don’t trust Democrats to act with a spirit of nonpartisanship and unity during a crisis.

Their fears are not unfounded.  ACA 25 proponents have already been forced to strip a provision that would have allowed the Legislature to essentially suspend the open-government provisions of Proposition 54 during a state of emergency and shut the public and the news media out of the legislative process.  Columnist Dan Walters wrote that those “who signed onto ACA 25 should be ashamed of themselves for exploiting the pandemic to undercut legislative transparency.”

Recall that at one of his daily coronavirus press conferences earlier this spring, Gov. Newsom admitted that he saw the COVID-19 crisis “as an opportunity reshape the way we do business and how we govern.”

That’s ultimately what the controversy over ACA 25 is all about.  Republicans don’t want to give legislative Democrats a blank check – in the name of a state of emergency – to do the same thing the next time the state faces a severe natural disaster or worse.

If Democrats are serious about ensuring, as Mullin put it, “its ability to fulfill its duty as a co-equal branch of government,” ACA 25’s provisions must be further narrowed and focused on truly what’s needed for the legislature to function during a crisis.  Anything short of that would just pave the way for a legislative power grab during a state of emergency, when dissenting voices may not be physically able to come to Sacramento to object in person.

Tim Anaya is the Pacific Research Institute’s senior director of communications and the Sacramento office.