Lobbying the Budget

There are some who are intimidated by the process of lobbying the budget. One theory as to why they’re intimidated is, put simply, that it contains numbers and people are intimidated by numbers. That’s just one theory. However, there are quite a few subtle and not so subtle differences between lobbying the budget and lobbying any other piece of legislation that can make the budget process seem more intimidating. Today’s podcast with veteran lobbyists Ray LeBov and Chris Micheli seeks to demystify that process.

There are two very important things to understand about the budget. First, remember that in some ways, the budget bill is a bill just like any other bill – but in some ways unlike any other bill. The other thing to keep in mind is why the budget is so important because it can do things to you and your client(s) or for you and your client(s).

We’ll go over the calendar for the budget here and leave the other topics Ray and Chris discuss for you to listen to. The first difference between lobbying the budget and lobbying legislation is the calendar. The budget does not run on the normal legislative calendar. The budget process starts right after beginning of the new fiscal year on July 1. There is a lot of behind the scenes work over the next six months culminating in the Governor’s budget proposal on January 10, which kicks off the legislative portion of budget lobbying.

After the Governor announces the budget proposal, it becomes two identical bills – one in the Assembly and one in the Senate – that begin to work their way through the California Legislature. The bills start in their respective house’s Budget Committee, and then the work on the budget gets divided up between the budget subcommittees which work on different issue area jurisdictions within the budget.

After the subcommittee process is completed, the budget bill goes back to the full Budget Committee, which essentially amends the recommended changes from the subcommittees into the budget bill. The next step in the legislative process is conference committee to reconcile differences between the Assembly and Senate versions of the budget. That said, they can make changes to the budget bill that were identical in the versions the two houses sent over in addition to reconciling differences between the two versions of the budget bill.

After conference committee come negotiations between the Big Three – the two Democratic leaders in the Legislature and the Governor – to negotiate any final changes to the budget. Then, by June 15, the budget is passed by the Legislature and sent to the Governor to be signed. The Governor has the final say on the budget and can either reduce, or completely line item veto, appropriations in the budget.




Advocacy in Practice with Judge Consuelo Callahan

Associate Dean for Experiential Learning Mary-Beth Moylan recently sat down with Judge Consuelo Callahan from the United States Court of Appeals for the Ninth Circuit.

They discussed Callahan’s path to the bench starting from her career right out of law school; her judicial life on the Court of Appeals; and advice, insights, and observations for attorneys appearing before her in the Ninth Circuit.

One thing in particular that stands out is Judge Callahan’s advice to attorneys – especially those working with Court of Appeals justices. She said “The point [of oral argument in the Appellate Court] is addressing the court’s concern and being really targeted and approaching the case thinking what would a judge want to hear? What opinion is the judge going to write in this and how can I assist the court?”

She emphasized the importance of answering the exact question a judge asks in order to help direct the conversation in a way that you want to argue. This way, you can address what the court finds important in their decision-making process.

Another important point that Callahan made was about preparing for court, setting high standards early on, and establishing good work habits. She put it a little more bluntly than that, saying:

we will do our jobs regardless of whether you do your job.”

Callahan also pointed out some resources to help attorneys make the best arguments and be prepared for their time in the Court of Appeals. The Appellate Reps for the Ninth Circuit host a mentorship program, where attorneys are assigned someone that is a specialist in the area of law.

Judge Callahan gave some amazing insight in her interview that would intrigue anyone in the legal field – attorneys and judges alike. You’ll have to listen to the rest of the podcast for all of her advice.

We hope you enjoy listening to the conversation with Judge Consuelo Callahan. Be sure to tune in next time!

Working with Legislative Committees

Today’s post is a continuation of our Rules for Effective Lobbying conversations. Today’s talk between Ray LeBov and Chris Micheli focuses in on the advice they have for lobbyists when it comes to working with committees and committee staff in the California Legislature.

The first step to being successful in working with committees is – like it is in many other aspects of legislative and regulatory advocacy – building good working relationships with the committee staff. This goes beyond just building good relationships with committee consultants, and into building good relationships with the committee secretaries in the Assembly and committee assistants in the Senate.

The other thing to keep in mind is that the work you do that is going to affect your success working in committee is done long before the committee hearing. Testimony at the hearing and other things that occur at the hearing really don’t change many votes. The work done with committee consultants and the minority part consultant to that committee is what will truly affect the outcome.

Also remember that on top of the Joint Rules and the standing rules for either House, that each committee also its own rules. To give one example, every committee has a rule about many days in advance of a hearing you have to submit your letter for it to be included in the analysis under support and opposition. For some committees, it’s a twelve day rule. Now, if you’ve built a good relationship with committee staff, if you’re a few days late, you might be able to go to them and ask them to list the letter, and they will do you that favor. In that situation remember that the twelve day rule applies to you, not them.

On the topic of letters, there may be times when committee staff asks you to submit a letter. A good rule to adhere to is that if honoring that request can in no possible way do harm to your client, always, 100% of the time, honor that request. The good will it can build up is invaluable. That said, never cross the line and agree to a request that could harm your client in any way.




I appeared earlier this week on KCRA with Mike Luery to talk about the lawsuit that Attorney General Jeff Sessions has against California over three “sanctuary jurisdiction” laws that were passed by the California Legislature last year.

The three laws in question are SB 54, AB 450, and AB 103.

The lawsuit asks a federal district court to define the line between federal and state power under the U.S. Constitution.  Some things are undisputed.  These are:  (1) The federal government has exclusive authority to make and enforce immigration laws. (2) Federal government agents, like ICE agents, have the constitutional authority to enter states and enforce immigration laws against people within the state’s jurisdiction.  And, (3) valid federal law is supreme over state laws that conflict with it.  At the same time, (4) the federal government does not have the constitutional authority to require state agents to enforce federal law.  It may offer inducements, like money or other favors, but it cannot command state officials to do its bidding. And, (5) states, like California, have their own sovereign power to make laws for purposes other than immigration enforcement, specifically to protect the health, safety and welfare of all of their residents.

Here, California’s listed purposes for the three laws in question are to promote health, safety and welfare, not to regulate immigration, although a purpose is quite clearly not to assist with federal government immigration enforcement.  The question for courts will be whether the effects of these laws go beyond regulating the behavior of state and local officials, entities, and individuals lawfully subject to the state’s control into the unconstitutional arena of affirmatively impeding federal immigration enforcement.

As to SB 54, this law prohibits state and local officials from providing some types assistance to ICE enforcement agents, which they are not, by law, required to provide.  States, not the federal government, have the power to direct the behavior of state and local officials.  To the extent that the State of California is only saying don’t help beyond what the law requires, that direction should be okay.

AB 450 deals with Immigration and Customs Enforcement (ICE) going into workplaces in California to identify undocumented immigrants. The requirements in AB 450 make ICE do what the law requires it do. That is, have an appropriate warrant and give appropriate notice before ICE comes in to a workplace.  California employers are validly subject to California laws designed to protect the privacy of workers and ensure safe and efficient workplaces.  It’s not clear that ICE has a right superior to California’s policy judgment to get the voluntary cooperation of employers with immigration enforcement.  The constitutionality of this provision will depend upon how courts view the California provision – as part of a valid state effort not to assist federal enforcement or as an affirmative obstacle.

AB 103 might be on the shakiest grounds, I think. It requires California’s Attorney General, or his or her designee, to inspect federal detention centers, including records.  California’s argument that it is protecting the integrity of leased detention facilities of all types within the state is substantial.  Nevertheless, if I had to choose the most vulnerable provision, it would probably be this one to the extent that California officials are going into federal facilities and overseeing how the federal government does things.

Of course, there are a plethora of other opinions about this new lawsuit. There were two opinions featured on this blog a few days ago. Neither of those opinions matches mine perfectly. Maura Dolan of the Los Angeles Times talked to half a dozen law professors from all over California, all of whom have varying opinions about which aspects of the three laws may or may not be constitutional. The San Francisco Chronicle also spoke to law professors for their takes on the lawsuit.

While the range of opinions on which aspects of the three “sanctuary” laws vary widely, there does seem to be a consensus of opinion on one aspect the lawsuit, that this will be settled by the U.S. Supreme Court.

Lobbying the Administration

Our In Practice series continues today with lobbying experts Ray LeBov and Chris Micheli discussing how to lobby the Governor’s administration on policy bills. They speak about important points of contact and mistakes lobbyists make when lobbying the administration.

LeBov emphasizes that if a bill you are lobbying affects a department or agency, you are going to need to be speaking with them. Even if they cannot take a position on a bill, their insights and knowledge will be critical to the success or failure of a bill. The agencies and departments a bill affects are going to be making a short presentation and a recommendation later on to the Governor as to whether to sign or veto a bill.

Another point of contact to lobby the administration is through the Horseshoe, which consists of the immediate Governor’s staff. The Deputies in the Legislative Affairs Units are responsible for every single bill that is introduced in the Legislature and are critical to contact. They analyze each bill and compose a file of reports prepared by the Department of Finance and relevant departments and agencies. They also collect letters sent to the Legislature about the proposed bills. LeBov and Micheli suggest sending every letter you as a lobbyist send to the Legislature to the Deputy in charge of the bill so they have it when they analyze the bill for the Governor.

Our experts also emphasize the importance of contacting the Deputies early on so that they can provide insight into any amendments that would make the bill more likely to be signed by the Governor.

Each Deputy is a person and creating a personal relationship with them is critical to building a strong support within the administration and will thus help you effectively advocate and lobby for your clients.

To find out more insights and common mistakes lobbyists make when lobbying the administration, listen to the full podcast.

Live from Classroom A McGeorge School of Law, Prof. Josh Blackman discussing the new sanctuary jurisdiction lawsuit against California.

Posted by McGeorge Capital Center for Law & Policy on Wednesday, March 7, 2018

Last night, news broke that U.S. Attorney General Jeff Sessions and the U.S. Department of Justice are suing the state of California, Governor Jerry Brown, and California Attorney General Xavier Becerra over California’s sanctuary jurisdiction policies.

Prior to the development, the Federalist Society had lined up Professor Josh Blackman from Southern Texas College of Law to speak at McGeorge School of Law on the topic of President Trump’s travel ban. The new lawsuit derailed those plans, and he instead spoke about the lawsuit.

There are three California bills that are at play in the case: SB 54, AB 450, and AB 103. The common theme in the lawsuit with these three pieces of California legislation is the issue of preemption and whether or not these pieces of legislation interfere with federal law in ways that would create preemption issues.

That is where today’s two speaker, Prof. Blackman and McGeorge’s own Professor Clark Kelso differed. Enjoy the video of their conversation and the questions that are asked of them afterwards!




The Role of State Agencies in Public Policy

Today’s podcast deals with state agencies and their role in public policy development. California’s agencies – including departments, boards and commissions – engage in a fair amount of public policy making through their rulemaking authority as well as their interpretation and enforcement of existing statutes and regulations.

There are many state agencies that do policy development by adopting regulations and implementing statutes. They can also engage in policy making when issuing guidelines, legal opinions, management memos and other sorts of written documents.

When dealing with a given state agency, it’s important first to know whether it’s a plural executive agency, an independent agency, or a line authority agency. Generally speaking, the Governor has less control of plural executive – his or her fellow constitutional officers – and independent agencies. On the other hand, the Governor has considerable authority to manage his or her line authority agencies.

Generally speaking, the authority of state agencies to adopt policy through their rulemaking process is defined and often restricted by state statute. While it’s an established principle of administrative law that an agency cannot go beyond its legally prescribed authority to regulate, many statutes confer broad powers to some state agencies regarding matters that directly affect the general public.

One interesting phenomenon in the rulemaking process is that businesses cannot rely in good-faith upon the written determinations issued by state agencies. State agencies’ written interpretation is often not given significant legal weight by a reviewing court.

In other words, despite being charged with interpreting, implementing, and enforcing California statutes and regulations, individuals and businesses that obtain written guidance from state agencies have little to no protection from legal liability if they follow that written guidance. There are a few exceptions, such as the FPPC, with advice letters to requestors, as well as the Franchise Tax Board and the Board of Equalization, which have Chief Counsel Rulings that provide limited protection to taxpayers.

Finding an Author for Your Sponsored Legislation

Today we’re continuing our In Practice addenda to Ray LeBov’s Rules for Effective Lobbying series. Today’s podcast drops in again on a conversation between veteran lobbyists Ray LeBov and Chris Micheli talking about how to find an author for your sponsored bill. This is one of the most important tasks when sponsoring a bill, and LeBov argues, one of the most understated.

Ray argues that any lobbyist should use some sort of list in order to ensure they are analyzing their decision thoroughly. After years in practice, he found a series of 15 questions to ask himself before deciding on a member, some of which are:

  • “What is the potential author’s relationship with members of all four caucuses and the Governor in the administration?”
  • “How will the issue play in potential author’s district?”, and
  • “Who’s going to staff that bill in the particular legislator’s office?”

None of these questions on their own are a silver bullet, but each one is worth weighing in context with all of the others on the list. Therefore, before deciding on an author, a lobbyist should weigh each one of the questions carefully and avoid common mistakes that could cause trouble later in the process for the bill – and your client.

Not only do Ray and Chris give veteran insight into important questions to ask, they also go over why they think each one is important to ask. Some questions may seem obvious but have nuanced purposes such as unwritten protocol in the Legislature or laying the foundation for long-term relationships with potential future legislative powerhouses.

To hear more questions you should ask yourself to help find an author for your sponsored bill, listen to the podcast and hear both Ray and Chris explain why each question should be asked and how it will benefit your search.




Underground Regulations and the Role of OAL

Today we’ll be exploring underground regulations and the role of the Office of Administrative Law, OAL.

OAL is charged with ensuring that agency and department regulations are “Clear, necessary, legally valid, and available to the public.” OAL as you’ll recall, is also responsible for reviewing proposed regulations by California’s more than 200 state agencies and departments that have rulemaking authority.

In addition to reviewing regular and emergency rulemaking projects, OAL reviews challenged underground regulations. What are underground regulations you ask? Let me provide you with an easily understood definition.

Regular and emergency rulemaking, which is found in the APA, could be considered above-ground or legitimate rulemaking. Underground regulations are those which did not undertake the APA process, but nonetheless qualify as a regulation.

The more technical definition, found in section 250, subdivision (a) of the California Code of Regulations, for underground regulations is “any guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule, including a rule governing a state agency procedure, that is a regulation…but has not been adopted as a regulation and filed with the Secretary of State pursuant to the APA, and is not subject to an express statutory exemption from adoption pursuant to the APA.”

According to the OAL, if a state agency issues, utilizes, enforces, or attempts to enforce a rule without following the APA, which it is otherwise required to do so, then the rule is called an underground regulation. Note that state agencies are prohibited by law from enforcing these underground regulations. If an individual or entity believes that a state agency or a department has issued an alleged underground regulation, then that issuance can be challenged by filing a written petition with the OAL.

If OAL accepts the petition for review, then the OAL may issue a determination. Should OAL review an alleged underground regulation, it is limited to a three-step analysis to determine if the alleged regulation must be adopted as a regulation pursuant to the state’s APA, but you’ll have to listen to the podcast to hear what that three-step analysis entails.

Common Mistakes Lobbyists Make

Today’s podcast is a slightly different take on our In Practice series. It’s actually part In Practice as well as part addendum to Ray LeBov’s Rules for Effective Lobbying series.

The podcast today is from a fly on the wall regular perspective of a conversation between contributors – and veteran lobbyists – Ray LeBov and Chris Micheli talking about common mistakes that colleagues in their industry make.

These mistakes can range from seemingly obvious oversights – such as not reading the text of a bill or always being honest- to more nuanced mistakes – such as not fully recognizing the importance of rulemaking bodies and how they can really dictate a win or a loss on lobbying public policy despite the outcome in the California Legislature or knowing to tailor your message for the staffer or legislator that you are talking to.

I hope you enjoy today’s episode. It’s a fun and insightful conversation between two seasoned and respected lobbyists. There are a number of golden nuggets of knowledge and wisdom in here that we can’t fully get into detail with here. You’ll have to listen to the podcast to glean the rest of Ray and Chris’s insights into avoiding common lobbying mistakes and how you can be a more effective legislative – and regulatory – advocate.