What is California’s SRIA process?

SRIA stands for a Standardized Regulatory Impact Analysis. It’s required to be done for any so-called major regulations. Under existing law, all regulations are required to have an analysis of the potential economic impact of a proposed regulation. In 2011, the Legislature determined that for financially impactful regulations, which amounts for anywhere from 10% to 15% of the state regulations that are proposed each year, must follow the SRIA process.

The formal rulemaking process begins when a state entity submits its proposed regulatory action to the Office of Administrative Law, OAL. The entity has to consider the proposal’s impact on business, specifically with consideration of industries affected, such as the ability of California businesses to compete with businesses in other states. In fact, the entity, the rulemaking body, must even consider information that is supplied to it by interested parties.

Why is this more detailed analysis under SRIA required? California’s Government Code provides some information. Specifically, the Government Code and other provisions say that the analyses that are being conducted under the SRIA statute really are intended to provide agencies, as well as members of the public, like the regulated community, with the information that they need to determine whether or not this proposed regulation is in effect the most efficient and effective means of implementing whatever policy decision or decisions that’s required by the statute in the least burdensome manner.

The SRIA process does six major things beyond the baseline regulatory analysis.

  1. Assess and determine the benefits and costs of the proposed regulation.
  2. Compare the proposed regulatory alternatives with a baseline.
  3. Determine the impact of the proposal on the state’s economy, businesses, and general welfare.
  4. Assess the effects of the proposal on the General Fund and any special funds.
  5. Determine the cost of enforcement and compliance
  6. Estimate the true economic impact.

YOu can read the transcript of the audio in today’s post here.

Today we’ll take a look at what Ray LeBov and I consider the key elements of successful lobbying in California. The first of these four is the Four P’s.

The Four P’s are: Process, players, policy, and personality.

  • Process – Understand the rules governing the legislative process in the Constitution, the Government Code, the Joint Rules, and the Assembly and Senate rules, not just the rules of how a bill becomes law, but all the rules, whether they cover ethics or the details of the budget process.
  • Players – Who are the players on both sides of the issue or the bill that you’re working on? Both the public officials, the elected officials, the staff, the administration officials, and the private sector, proponents and opponents, have a working relationship with all of them.
  • Policy – know your bill and have a working knowledge of the subject matter in general.
  • Personality – Exhibit a pleasant demeanor when working with others during the legislative process. We’re all professionals, and you can just as easily find yourself working on the same side of an issue as you can working against somebody. So treat others with respect and expect the same treatment for yourself.

Beyond the Four P’s, what are the three other keys to effective lobbying?

  • Seek guidance from others – talk to your colleagues and staff and others to learn more about a bill, a public policy area, or the legislative process itself. And listen to suggestions that are made by others with whom you work. Ask others why they succeeded or why they failed with a particular bill or issue.
  • Keep your word – Your reputation as a lobbyist can be made or broken by what you do, how you do it, and what you say.
  • Be flexible – one’s best-laid plans sometimes run into unforeseen hurdles that you have to get over. It’s important to be flexible in your dealings with others throughout the legislative process.
  • Do your research – Whether it’s for your bill, a public policy issue, or even a legislator that you’re about to lobby, it’s important to do at least some basic research

You can find the transcript of the audio in today’s post here.

I recently took a look at how the number of bills that Governor Newsom signed and vetoed compared to previous years in his administration and previous governors. Today let’s look at some themes that emerged for why he vetoed the bills that he did.

The most common reason – which is not unique to Governor Newsom – was fiscal cost, which appeared in different forms. One was that the budget process should have been used for bills resulting in costs to the state. Another variation was expressing concern that the measure would create permanent impacts on the state’s general fund.

Some non-fiscal themes that Governor Newsom expressed throughout his vetoes were:

  • Would prefer state agencies work with the Legislature on a solution.
  • The bill would create confusion with existing state or federal law.
  • A state agency was/is already addressing the issue with regulations.
  • The bill would interfere with the work of an existing state agency.
  • The bill would conflict with federal law.
  • Adverse impacts on the private sector.
  • Wants further study or refinement before the particular bill should become law.
  • Vetoing a bill that he had previously vetoed.
  • The bill interferes with the collective bargaining process.

You can find the transcript of the audio in today’s post here.

With all the legislative deadlines completed, and all the bills signed or vetoed, we can now take a look at the 2021 legislative session by the numbers. Just more than 800 bills reached the Governor’s desk, including close to 700 bills that were passed in the final month of the legislative session.

2,421 bills were introduced in 2021. 828 bills were introduced in the State Senate, 1,593 came from the Assembly. In total, 836 bills made it to the desk of Governor Gavin Newsom, roughly 34.5% of the total number of bills introduced. 32% of the bills introduced were signed into law, and 3% of all bills introduced were vetoed.

Governor Newsom signed 770 of the 836 bills that reached his desk, good for a 92.1% signature rate. 66 bills were vetoed, meaning 7.9% of the bills reaching the governor’s desk got vetoed.

Of the 770 bills that were signed into law, 66% were Assembly Bills, 34% were Senate Bills. Of the Assembly Bills that were signed into law, 75% were authored by Democrats, 11.5% were authored by Republicans, and the remaining 13.5% were either committee bills or authored by the independent legislator. 76% of the Senate Bills that became law were authored by Democrats, 8.5% were authored by Republicans, and 15.5% were committee bills.

Of the 66 vetoed bills, 68% were AB’s and 32% were SB’s. Of the AB’s that were vetoed, 91% were written by Democrats, 4% by Republicans, and the remaining 5% came from committees or the independent legislator. As far as SB’s are concerned, 86% were authored by Democrats and 14% were written by Republicans.

Governor Newsom’s 7.9% veto rate this year is down from the 13% of bills he vetoed last year, when the length of the legislative session and the number of bills was cut down by the COVID-19 pandemic. Both are lower rates than the 16.5% of bills he vetoed in his first year.

By comparison, Governor Brown in his second stint as Governor received between 850 and 1,250 bills annually. He vetoed a low of 10% and a high of 15% of those bills. His predecessor, Governor Schwarzenegger received between 900 and 1.250 in his seven years as governor. He vetoed between 22% and 35%. In Governor Gray Davis’s five years, he received between 950 and 1,450 bills, vetoing a low of 6% and a high of 25% of the bills. Before him, Governor Pete Wilson received between 1,050 and 1,700 bills and vetoed between 8% and 24% of bills.

You can read a transcript of the audio in this post here.

Another topic that Ray LeBov and I have put thought into is advice for organizations hiring a lobbyist. There are numerous things to think about when you’re hiring an employee lobbyist or a contract lobbyist, and we offer some of our best practice suggestions for navigating that process.

Regardless of the type of individual an organization has to hire, either one internally as an employee or one externally as a contractor, the fundamental questions to ask yourself are still, what do I and my organization need and what does our lobbying effort need? Keep in mind that the individual(s) that you hire, whether they are an employee or a contractor, will be a public face for your company, your association, your industry, or your trade group. Choose wisely.

The first question to consider is whether to hire an employee lobbyist or a contract lobbyist. While a contract lobbyist can address some short-term needs, hiring for an in house lobbyist should have a long term view in mind. For employee, or in house, lobbyists, some other questions you should answer are do you want a newly minted individual or someone with more experience? Do you need to diversify your workforce? If so, remember to consider things like party affiliation, ethnicity, technical expertise, and relationships with elected or appointed officials.

For contract lobbyists, there are different questions you should look answer. Those include What expertise does the lobbyist bring to the table? Does their skill set match with your organization’s needs? What is their track record? Do they have any conflicts of interest that cannot be easily resolved?

You can find the transcript of the audio in today’s post here.

One of the most critical things for a lobbyist to get right is the lobbyist-client relationship. This is something my colleague Ray LeBov and I have written about before and the most important advice we can impart is that expectations need to be set early by both parties – what does the client expect from the lobbyist? What does the client need or want?

Sometimes those questions are easy and clear. Pass or defeat a specific bill, for example. However, there are other times where it may be less clear. In other instances, maybe they want to increase their presence or develop certain relationships. At a minimum, the client expects to be treated with respect, to be kept apprised of all major developments and to not have a lobbyist who has a conflict in representing the client.

There are a number of obligations to the client that can be found in the Institute of Governmental Advocates Code of Conduct. First, the lobbyist has definite ethical obligations to a client to be truthful, to follow the law, to protect any confidential and proprietary information that the lobbyist obtains. Second, the lobbyist should be an effective representative for the client. She or he must have knowledge and confidence throughout the legislative process when representing his or her client.

The lobbyist’s goal should be to under-promise and over-deliver, as Ray likes to say. Do not set unreasonable expectations or suggest the ability to achieve something that cannot realistically in fact be achieved. That does not bode well for a successful engagement between the lobbyist and her or his client. And when it comes to major decisions, remember that the client is the ultimate boss. It’s their money and interests at stake.

Some clients are located in, or frequently visit, Sacramento and may want to be much more involved in the lobbying effort whereas others never come to Sacramento, and some the lobbyist may never even meet face to face. Regardless of the location or the level of involvement of your client, the lobbyist needs to educate the client about the legislative process, about the personalities, about the policy and the politics, and of course, what the client should expect throughout the legislative process. The more the client understands what is happening under the Capitol dome, it’ll be better for both parties to this engagement.

You can find the transcript audio in this post here.

Over the years, my colleague, Ray LeBov, and I have seen some mistakes that are common among new lobbyists but have also been made by more experienced advocates as well. I’ll detail some of those here.

Not reading the bill

Don’t rely on someone else’s description or understanding of the bill. Read the bill and any committee or floor analyses of the bill.

 

Not having paper 

Always provide a leave behind. Whether you deliver a physical piece of paper, by hand, or send it in an email, leaving a one-pager (or two if the bill is particularly complicated or detailed) helps jog the memory of the people you’ve lobbied. And they’ll have something written that they can reference after your conversation with them.

 

Taking votes for granted

Even if you think a legislator is likely to vote with your position, take the time to pay a courtesy visit. Don’t rely on only a hunch. Even if you think the legislator will vote against your position, check. Sometimes you might be pleasantly surprised that the legislator might actually vote with your stated position.

 

Failing to meet with both committee consultants

Both the majority party and the minority party have committee consultants. Be sure to communicate with both of them and supply them with the same paperwork so that all elected officials have the same information and these consultants have all the relevant details to complete their bill analyses.

 

Not finding the right bill author

This merits its own article but note that this takes time and effort to determine the best author for your bill. There are myriad factors that go into selecting the best bill author,

 

Not reading the room

Whether you’re in a legislator’s office or in a committee hearing; whether you’re for or against a bill, read the room. My colleagues and I can’t count how many times we’ve seen other lobbyists at the podium or at the table read their entire testimony for several minutes, right after the committee just admonished them to keep it brief.

 

Not understanding/appreciating the lobbyist/client relationship

Manage your client’s expectations. You need to establish how questions like “How is information provided?” “Who determines strategy and tactics?” and more are addressed before you get going in your relationship with your client.

 

Not telling the whole story

Eventually, everything becomes public in the legislative process. It is better to let everyone know in advance about a development, particularly an adverse one, than for them to find out about it from someone else.

 

Not being careful with what gets put in writing

In today’s world with social media and easily forwardable emails word travels fast. If you don’t want something widely known, don’t put it in writing.

You can find the transcript of the audio in this post here.

Today we’ll take a look at some key differences in four common legislative floor operations at the end of the legislative session versus earlier in the session.

Concurrence

Under Assembly Rule 77, a vote to concur in any Senate amendments to an Assembly Bill must meet the same vote threshold required for the bill itself to pass. This is generally a simple majority vote unless otherwise specified. However, the concurrence vote cannot be taken until the bill has been on the unfinished business file for one calendar day; this is known as the one-day waiting period. This does not apply to the last two days of the legislative session. Assembly Rule 77 can and does get suspended, as recently as the end of the 2020 legislative session.

The California Senate has no one-day waiting period. Senate Rule 29 still requires that the amended measure being returned to Senate from the Assembly with amendments appear in the unfinished business file of the Senate Daily File, and that Senators be provided with analysis of the amended Senate Bill, but there is no requirement in the Senate’s rules for one day to pass.

Floor Amendments

The two houses of the California Legislature operate slightly differently in how they amend the other house’s bills on the floor. In the Assembly, they are required to submit amendments the night before the Friday deadline, i.e. Thursday evening at 5:00 PM, although at the end of the session, the desk is known to stay open later to process the crush of amendments coming in. On Friday, the Floor Manager, that is the Assembly Member who is managing or presenting the Senate Bill on the Assembly floor, has to stand up on the floor and present the proposed amendments and seek approval for those amendments. Approval can either be made with the unanimous consent of the members or by a roll call vote. Any member can request a roll call vote. And in that case, the bill is amended by a majority of those present and voting.

In the Senate, amendments are not presented on the floor. Instead, amended bills are placed on the second reading file and amendments are processed by the Senate Desk. This effectively meant that, during the end of the 2021 session, amendments to ABs were made through 5 pm on the Friday before the last week of session.

Batching and the Consent Calendar

In recent years, the term “batching” has come up increasingly on the Assembly floor. It’s a process that once unanimous consent is received on the floor, permits a single vote for multiple bills or amendments to be adopted. It’s used, occasionally, when both the Democratic and Republican caucuses both have a support recommendation and no Republican legislators have abstained or voted no on the bill in committee or on the floor. It is most similar to the Senate’s special consent calendar.

Going Past Midnight

This question always arises at the end of session, as the clock ticks closer and closer to midnight, can legislative business be conducted after midnight on the last day of session?

In an even-numbered year, an election year, this question is clearly answered by California’s Constitution. Article IV, Section 10, Subdivision C states the Legislature must conduct work by midnight, August 31. There are three types of bills that are exceptions to this mandate.

However, in odd-numbered years, the date of adjournment is set by the Joint Rules of the Assembly and Senate. In past years, in following with its custom and practice, the Senate will work past the midnight deadline without suspending the Joint Rule. The Assembly, however, generally passes a resolution suspending the Joint Rule. Do they need to do that? I don’t think so. As a general principle of California’s separation of power doctrine, the judicial branch won’t consider a legal challenge to a statute that is alleged to have violated internal rule of procedure of either of the houses of the Legislature

You can find the transcript of the audio in today’s post here.

With the 2021 legislative session at a close, we can now turn our attention to the actions Governor Newsom can take on the bills that were passed at the conclusion of the session on September 10. Governor Newsom can consider bills under October 10.

As a quick reminder, there are three actions that the governor can take on legislation on his or her desk. The governor can sign the bill into law. They can veto the bill. Or they can allow the bill to become law without a signature, California’s so-called pocket signature rule.

In this third year of Governor Newsom’s term, he received just over 800 bills to act on. That number was slightly depressed by the coronavirus pandemic compared to his first year in office. So far, he has acted on 159 of the 800 bills. During his first year in office, just over 1,000 bills were sent to Governor Newsom’s desk and he vetoed 16.5% of them. In his second year, where the pandemic reduced the number of bills introduced by 76%, just over 425 bills reached the governor’s desk. Newsom vetoed 13% of those bills.

How does this compare historically to other governors in the era of bill introduction limits? Since the 1990’s, when bill introduction limits were introduced, a typical year would have between 850 and 2,100 bills reach the Governor’s desk. Governor Pete Wilson usually received between 1,050 and 1,700 bills. His lowest veto rate was 8%, and his highest veto rate was 24%. In Governor Davis’s five years in office, he received between 950 and 1,450 bills and vetoed between 6% and 25%. Governor Schwarzenegger received between 900 and 1,250 bills during his term. He vetoed between 22% and 35% of bills. And most recently Governor Brown, in his second stint as governor, received between 850 and 1,200 bills annually, vetoing between 10 to 15% of them.

You can find the transcript of the audio in today’s post here.

There are multiple players who take part in setting education policy in the state of California.

Article IX, which focuses on education, of the California Constitution has sixteen sections. Section 2 provides that a Superintendent of Public Instruction, sometimes referred to as SPI, shall be elected by the qualified electors of the state at each gubernatorial election. And no Superintendent of Public Instruction may serve more than two terms. The SPI is a nonpartisan office, although it’s worth noting that it was originally partisan.

The SPI directs all the functions of the Department of Education, and the SPI executes the policy set forth by the Department or the Board of Education, and the SPI chairs the Board of Education. Generally, they viewed as the state’s chief spokesperson for the public schools who provides education policy and direction to the local school districts. And he or she serves as an ex-officio member of the CSU community college and UC higher education systems.

Next is the State Board of Education, SBE, which was established in 1852. SBE is the governing and policy-making body of the California Department of Education. The board itself is comprised of 11 members, and note that both the Constitution and state statutes assign the State Board of Education a variety of different responsibilities.

The SBE has also adopted statewide academic standards for content and student performance in all the major topics: English, language arts, history, social science, math, science, visual and performing arts, and even physical education. Now 10 of the board’s 11 members are appointed by the governor for staggered four-year terms. They’re subject to confirmation by the state Senate, but not by majority vote. Instead, by a two-thirds vote, and that has to occur within one year of their appointment to the board.

The 11th member is also appointed by the governor and subject to Senate confirmation. However, that individual serves a one-year term and is a California public high school student. Note that the student does enjoy full voting rights and all the rights and privileges of the board membership. The only difference, again, is he or she serves a one-year term.

Then there is the Department of Education, CDE. CDE is under the direction of the Superintendent and the CDE implements the policies that have been adopted by the State Board of Education.

The Constitution also spells out the role that Legislature has in education policy in California as well.

You can find the transcript of the audio in today’s post here.