McGeorge Adjunct Professor Chris Micheli

Today I’ll be taking an in-depth look at California’s Constitution, and also do a brief comparison of California’s Constitution to the U.S. Constitution.

California’s Constitution was adopted in 1849, just prior to California becoming a state in 1850. It is the governing document for the state of California. By most accounts, our state’s constitution is one of the longest in the world. It has been amended or revised some five hundred times.

The main reason why California’s constitution is so lengthy is that there are numerous provisions adopted by the people – either through ballot measures at statewide elections or through other means. One factor in that is that the signature requirement to place a constitutional amendment on the ballot is one of the lowest of all the states.

California’s constitution provides for cities and counties, as well as charter cities, whose local ordinances can be insulated from state laws. The state constitution also specifies that cities are allowed to pay counties to perform governmental functions, such as public safety services.

When comparing the U.S. Constitution to California’s Constitution, the first that thing stands out is that the U.S. Constitution spells out the powers of the Legislative, Executive, and Judicial branches in its first three Articles – respectively – the California Constitution does not cover the three branches of government until Articles IV through VI. The California Constitution instead sets forth personal rights in Article I, provisions of direct democracy in Article II, and in Article III California’s Constitution provides for the establishment of the state’s government system and other institutions like the University of California.

I go into greater detail about the California and U.S. Constitutions in today’s podcast, and also have a broader discussion about the similarities and contrasts between the two governing documents in the audio as well.

On this week’s episode of The CAP⋅impact Podcast, I talk with former Chair of the IRS Advisory Council and Professor of Law at the University of California, Davis School of Law, Dennis Ventry.

Professor Ventry is a long-time advocate for tax reform, specifically reforming the federal free file program. The intent of the federal free file tax program is to allow low-income taxpayers to file their tax returns for free. His critique of the program is in the implementation. The IRS does not administer the program – in fact, the IRS has only three people who oversee the free file tax program. Instead, the IRS has an MOU with companies like Intuit – which makes TurboTax – H&R Block, and others to administer the program. These companies – combined, their lobbying group is known as the Free File Alliance – were fully expecting and hoping to be able to charge all consumers to file their taxes. Those companies blatantly ignore parts of the MOU and engage in false a deceptive trade practices ranging from attempting to upsell taxpayers products they do not need instead of redirecting them back to the IRS’s free file tax program portal to putting code in their website to ensure that a search for that company’s free file tax software will actually direct the person to the company’s fee-based commercial site.

Of course, because these companies do not like that Professor Ventry was critical of them for abusing the public’s trust, they hit him with California Public Records Act and Freedom of Information Act requests. You can listen to the podcast to learn more about how it impacted him, or read this article in the New York Times – that features Prof. Ventry – but is about how private groups are weaponizing FOIA and state PRA’s to go after researchers who look into things they don’t want those researchers looking into.

You can learn more about Professor Dennis Ventry on his University of California, Davis School of Law faculty page. You can also find Professor Ventry’s published works on eScholarship.

If you enjoyed this week’s episode of The CAP⋅impact Podcast with Professor Ventry, please share it with a friend or colleague. You can also help more people find the show by subscribing to The CAP⋅impact Podcast on Apple Podcasts – or wherever you listen to podcasts – and leave the show a 5-star review.

McGeorge Adjunct Professor Chris Micheli

Like the federal government, California laws are found in three places: the state constitution, the codes or the statutes, and regulations. The hierarchy of laws in California is the same as under federal law, with the Constitution on top, statutes in the middle, and regulations on the bottom. The following is a brief overview of these three sources of California laws.

The California Constitution is one of the longest in the nation. It’s about 110 pages in length. The following are the articles of the constitution and what they cover: Article I, Declaration of Rights; Article II, Voting Initiative and Referendum and Recall; Article III, State of California; Article IV, Legislative; Article V, Executive; Article VI, Judicial; Article VII, Public Officers and Employees; Article VIIII, Education; Article X, Water; etc.

Next comes the statutes. There are 29 titles in the state. They contain over 150,000 statutes according to the Legislative Council Bureau. The following are the codes: Business and Professions Code, Civil Code, Code of Civil Procedure, Commercial Code, etc.

Now, California has over 200 state agencies that make public policy via their authority to adopt regulations. They adopt between 500 and 600 new regulations each year. The website of the Office of Administrative Law provides direct access to the California Code of Regulations. The CCR is organized under 27 different titles. Remember, our statutes are in 29 codes, and our regulations are in 27 titles.

Title 1, General Provisions; Title 2, Administration; Title 3, Food and Agriculture; Title 4, Business Regulations; Title 5, Education; Title 7, Harbors and Navigation; Title 8, Industrial Relations; Title 9, Rehabilitative and Developmental Services; Title 10, Investment; etc.

You can find a full transcript of today’s podcast here.

McGeorge Adjunct Professor Chris Micheli

Lobbying is advocating on behalf of a client or cause – generally for payment but also sometimes on a volunteer basis – to attempt to influence official action of either legislative or executive branch officials, and their staff. Individuals, or groups of individuals, lobby elected and appointed officials and their staff in an attempt to influence those officials’ decisions.

Lobbying at a professional level is done primarily by paid advocates who are employed by companies, associations, or even individuals, to advocate on their behalf. Lobbying occurs with personal visits, including office meetings, committee testimony, even telephone conversations. Lobbying also occurs through written communications such as research reports, advocacy letters, grassroots contacts, and even the news media. Lobbying can be at times challenging, fascinating, intellectually interesting and at other times perhaps mundane.

Some have described lobbying activities as being either direct or indirect lobbying. Direct lobbying is often defined as meeting in person with legislators and staff and providing them with information relevant to their decision making. Indirect lobbying is usually defined as grassroots advocacy. The intended result is to have constituents and other interest groups contact elected and appointed officials and their staff. Indirect lobbying also involves the use of the news media, sometimes called earned media. The lobbyists who are successful can benefit from the media attention for or against a public policy issue or even a particular piece of legislation or regulation.

Almost every interest has a lobbying organization. Heck, even lobbyists have their own organizations at both the federal and state levels. While many folks only think of lobbyists as paid professionals, there are also many volunteer lobbyists, whether paid or volunteer the US Constitution specifies the right to petition the government for the redress of grievances under the First Amendment to the Constitution.

As protected speech lobbying will always have an important role in governmental deliberations. In fact, the lobbying profession is a necessary and appropriate part of the political process and a part of our democracy. Decisions made by the federal, state and local governments impact individuals, groups, and organizations. Those who are impacted, appropriately, want to influence those individuals who make decisions impacting these groups and organizations. Decision-makers also want to understand the impacts of their decisions. As a result, lobbyists are needed to communicate the impacts of those decisions.

You can find a transcript of today’s podcast here.

McGeorge Adjunct Professor Chris Micheli

During the legislative session there are more than 2,500 bills usually introduced and hundreds of these are spot bills or intent bills. So what are they are why are they used?

According to California’s Legislative Counsel, a spot bill is one that does not make any substantive change to the law and would not otherwise affect the ongoing operations of a state or local government. Generally, spot bills are not referred to policy committees unless they are amended to make substantive changes to have some sort of an effect.

The process of handling spot bills is different between the Assembly and the Senate. In the State Senate, amendments to the spot bills must be provided to the Senate Committee on Rules. The Rules Committee then amends the bill and refers it to the relevant policy committee or policy committees.

In the Assembly, the amendments to spot bills are submitted to the Assembly Committee on Rules. However based upon the Rules Committee’s reading of the proposed amendments, the Rules Committee refers the bill amendments and the bill itself to the relevant policy committee, and then the policy committee is the one that processes the amendments to that bill.

 

Why might a spot bill be used?

Generally, it is because the language is not yet ready for prime time. In other words, an author may know that he or she wants to do something, for example in transportation or something affecting the penal code, but the specifics of the language have not been finalized, or the specifics of the proposed change in the law have not been finalized. And because legislators have to introduce bills by certain specified deadlines, they want to introduce something that can later become a vehicle for those specific changes to the law.

Intent bills are effectively treated the same as a spot bill. The difference is that a spot bill doesn’t make any substantive change. Neither does an intent bill, but the intent bill generally specifies what a legislator wants to do with that particular bill. They just haven’t developed the specific statutory language yet. Whether it’s a spot bill or an intent bill, it’s held by the respective Rules Committee until substantive amendments are made and proposed; then that bill is released by the Rules Committee and sent to its first policy committee for a hearing.

When you think of scams to exploit the elderly, what comes to mind? Are you thinking of those dubious, at best, emails from a Nigerian prince too? Yeah, here’s the thing. The ways that older adults – and in some cases younger adults with certain mental impairments – can be financially exploited are far more nuanced than that. Katherine Pearson, a Professor of Law at Pennsylvania State University’s Dickinson School of Law, was the only academic appointed to the Pennsylvania Supreme Court’s task force to enhance protections for the elderly in Pennsylvania in 2014.

Among the major successes that came from the task force’s work was a database that allows the courts in Pennsylvania to know how many guardianships there are, how many cases a professional guardian is managing, and other critical data points that allow for more effective oversight. With that data, it is easier to spot problems and identify potential financial abuse of the elderly. One recommendation that has not gone into effect, that appears to be common sense but has some technical and political hurdles, is a requirement to take a criminal background check to be a professional guardian. You will have to listen to the podcast to hear about those hurdles.

You can learn more about Professor Katherine Pearson on her Pennsylvania State University Dickinson School of Law faculty page. You can also find Professor Pearson’s published works here. You can also keep up with Professor Pearson – and her colleague, Professor Rebecca Morgan at Stetson Law – on Elder Law Prof Blog, where they both write on elder law issues.

If you enjoyed this week’s episode of The CAP⋅impact Podcast with Professor Pearson, please share it with a friend or colleague. You can also help more people find the show by subscribing to The CAP⋅impact Podcast on Apple Podcasts – or wherever you listen to podcasts – and leave the show a 5-star review.

McGeorge Adjunct Professor Chris Micheli

 

 

 

 

 

 

 

Today’s podcast covers a list of resources that my colleague, Ray LeBov, and I have put together. You can find a full list of these on Ray’s website.

What are some of the resources we cover on Ray’s site? For one, The Institute of Governmental Advocates is a voluntary non-profit professional membership association for California lobbyists and lobbying firms. IGA maintains a professional code of conduct for their advocates that you can find on the IGA website.

The Fair Political Practices Commission is the state agency that defines and regulates the lobbying process and those engaged in the practice of advocacy in accordance with the Political Reform Act which was implemented by the Legislature. Familiarity with FPPC rules is a must for governmental advocates. The FPPC even maintains a toll-free advice line and any advice provided by the FPPC is considered official and binding.

There are a number of key publications and directories including Capitol Inquiry, which produces the pocket directory of the California Legislature, the California Legislature Staff Index, the California State Agency Directory, the California City and County Directory, the US Congress Directory, as well as electoral maps, profiles, and the California Judicial Leaders Directory. There’s also California Political Maps which publishes a glossy two-sided wall poster of Senate and Assembly districts. There’s a complete list of legislative publications on the Legislative Counsel website. California Budget Center publishes Dollars and Democracy which is a guide to the state budget process.

The Senate offers two wonderful publications, The Legislative Process – A Citizen’s Guide to Participation as well as The Budget Process, also called A Citizen’s Guide to Participation. On the Department of Finance website, you can find a brief overview of the legislative process as well as one on leginfo. The Office of Administrative Law has an overview of the rulemaking process as while as a two dozen page guide book, titled Guide to Public Participation in the Rulemaking Process. They also published the rulemaking law calendar and the California Regulatory Notice Register.

And lastly, the following are some of the selected political news websites including Around The Capitol, Calbuzz, Capitol Alert by the Sacramento Bee, Capitol Morning Report, Capitol Weekly, and Rough and Tumble.

You would think you own your DNA, right? That seems intuitive enough. As I learned in my conversation with Jessica Roberts – Professor of Law and Director of the Health Law & Policy Institute at the University of Houston Law Center – intuition has nothing to do with the law on this. In fact, who owns your DNA and the data in it is far more complicated.

While legal thinking and public policy are evolving on the idea of someone owning their DNA and genetic data in the same way they might own a house or a car, it certainly has not always been that way. It was not until a case earlier this decade that a court even allowed a conversion claim – that is, a claim that an individual’s property rights – on a genetic data civil case to go forward. By the way, the details of that case read like a bad knockoff of a James Bond novel. You can hear Professor Roberts explain it in the podcast or read about it here.

We also go in-depth on how much of your rights to your DNA and genetic data you relinquish when you take one of those genetic ancestry tests like AncestryDNA or 23 And Me. That’s where the issues of “Do I own my DNA?” and “What can I do if a company I gave my DNA to does something with my genetic data or shares my genetic data with someone else, and I don’t agree with what the company did?” get hairy. You will have to listen to the podcast about how that works. No spoilers here.

You can learn more about Professor Jessica Roberts on her University of Houston Law Center faculty page. You can also find Professor Roberts’ published works here and follow her on Twitter @jrobertsuhlc.

If you enjoyed this week’s episode of The CAP⋅impact Podcast with Professor Roberts, please share it with a friend or colleague. You can also help more people find the show by subscribing to The CAP⋅impact Podcast on Apple Podcasts – or wherever you listen to podcasts – and leave the show a 5-star review.

McGeorge Adjunct Professor Chris Micheli

There are some firms that work to support lobbyists through managing coalitions, directing grassroots campaigns, conducting public outreach, or other indirect efforts to enhance or promote the efforts of lobbyists. There are a handful of public affairs firms in Sacramento that do this type of work. There are firms that specialize in social media lobbying that create websites and digital media campaigns to influence lawmakers’ decision making. There are also strategic communications firms that focus support lobbyists’ efforts through op-ed writing, organizing press conferences, and the like.

Additional efforts, either in-house or from a public affairs firm, can include helping to organize lobby days, conducting research and collecting data, engaging in educational efforts, planning receptions or events, and otherwise creating materials to help the lobbying team such as background papers or even support and opposition letters. Whether created in house or by a contract firm, the development of advocacy support materials is an important role for those who support lobbying efforts. Drafting letters of support or opposition, developing key talking points, writing one-pagers, researching the legal or legislative history of issues, they are all important support services for direct lobbying efforts.

It is also important to have a coalition to make your advocacy efforts successful, especially if the bill or regulation is controversial or will require substantial work to get adopted or to be defeated. While many bills do not require as much outside support efforts, there are always issues that require “a heavy lift” and advocating those issues are better served with a coordinated direct and indirect lobbying effort.

You can find a full transcript of today’s podcast here.

McGeorge Adjunct Professor Chris Micheli

The state of California has three forms of direct democracy and they are found in Article II of the state constitution. Those three forms are the initiative, referendum, and recall processes.

Initiative

The initiative begins with presenting a petition to the California Secretary of State that includes the text of the proposed statute or constitutional amendment before the circulation of an initiative petition for signatures by the voters. A copy is submitted to the Attorney General who prepares a Title and Summary of the measure. If the AG, the Attorney General, determines a fiscal analysis is necessary then he or she sends that measure to the Department of Finance and the Joint Legislative Budget Committee for a fiscal analysis.

What are the thresholds to qualify an initiative? For a statute it’s 5% of the votes cast for governor at the last gubernatorial election. That 5% threshold goes up to 8%, again of all the votes for governor at the last gubernatorial election, for proposed constitutional amendments. Proponents have 180 days to collect those signatures.

Note that there is a constitutional prohibition that an initiative cannot name any individual to hold any office or name or identify any private corporation to perform any function or have any power or duty. Those can’t even be submitted to the electorate.

Referendum

In addition to the initiative process wherein voters can propose new laws, the people also have the power to approve or reject statutes, either in total or in part. This is the referendum process. As you can probably imagine, most referendum efforts have either failed to even qualify for the ballot or have been rejected by the voters. When a valid referendum qualifies challenging a statute, that underlying statute actually is stayed implementation, until after a vote by the electorate.

There is a significant time limitation with the referendum. The referendum must be presented within 90 days after the enactment date of the statute, and by the way, that presentation is the requirement that a sufficient number of votes be signed to that referendum petition. Referenda can qualify for the statewide ballot up to 31 days before an election, which is different than an initiative which must qualify 131 days before. Just like an initiative statutory proposal, a referendum petition must have at least 5% of voters based upon all the votes for the candidates for governor at the last gubernatorial election.

Note this point what a yes versus a no vote means. Once the referendum petition is on the ballot, the law is repealed if voters cast more no votes than yes votes on the referendum in question.

Recall

California voters have the power to remove an elected from office, and that too is initiated by delivering a petition to the Secretary of State. In that written petition, it alleges a reason for the recall. Please note that the sufficiency of the reason for that recall is not reviewable by any state official, the Secretary of State, or a court.

Proponents have 160 days to file the signed petitions on the recall, a petition to recall a statewide. A statewide officeholder must be signed by electors equal to 12% of the last vote for that office. The signatures from each of five counties must be equal in number to 1% of the last vote for the office in that particular county. An interesting limitation here. Signatures to recall State Senators, Assemblymembers, Board of Equalization Members, and judges of both the courts of appeal and the trial courts must equal 20% of the last vote for that particular office.

You can find a full transcript of today’s podcast here.