By: Chris Micheli

The 2017 Legislative Session By The Numbers

With 2017 drawing to a close, it seems fitting to do a recap of the 2017 Legislative Session by the numbers. Specifically, I’ll be looking at the numbers in terms of bill introductions, end of session statistics, and the Governor’s actions.

On the topic of bill introductions, we saw 2,495 bills introduced before the February 17th bill introduction deadline. That is up from previous years, even taking into account that there are more bills introduced in the first year of the Legislature’s two-year session.  The Legislature introduced about 200 more bills in the 2017 session than they did in 2015 or 2013 – 2,297 bills and 2,256 bills, respectively. It’s worth noting that the Assembly did increase its cap on bill introductions from 40 bills in the two-year session to 50 bills.

Let’s now turn to the end of session statistics, which I’m breaking out into the two houses of the Legislature. 817 bills were introduced in the Senate. Of those, 514 were passed by the Senate. Only three of those bills were refused passage on the Senate floor. That leaves about 300 Senate bills as two-year measures, which can be considered again in January of 2018, but must be passed out of the Senate – their house of origin – by January 31, 2018. That same deadline applies to Assembly bills from 2017 that became two-year measures.

1,733 bills were introduced in the Assembly, 970 of which passed out of the Assembly. Only 9 were refused passage on the floor, leaving 763 as two-year measures that may be considered by January 31st, 2018. That comes out to 56% of the Assembly bills introduced being passed out of the Assembly, with only 0.5% failing passage. That compares to 63% of Senate bills passing out of their house of origin, and only 0.4% failing to do so. You can listen to my podcast to learn about the most, and least, prolific bill authors in each house as well as which standing committees had the largest and smallest number of bills that were originally referred to them.

That leaves us with the Governor’s actions on bills. 37.5% of the bills introduced in the Assembly reached the Governor’s desk, and 32.7% of the total Assembly bills were signed into law. Only 4.8% of Assembly bills were vetoed. On the Senate side, 39.9% of bills reached the Governor’s desk, 35.7% were signed, and 4.2% were vetoed. So, based on the numbers, you had better odds of having a Senate bill passed in 2017 than an Assembly bill.

 

 

 

 

Recent action at the state, federal, and private corporate levels provides a window into the many ways to attack the problem of nondisclosure agreements in sexual harassment settlements.

Bar Nondisclosure Agreements in Settlements

A decade ago, the California Legislature changed the law to bar nondisclosure agreements in settlements of certain serious sexual abuse claims. The Legislature expanded it in 2016 to cover other types of claims with the passage of AB 1682. Now, Senator Connie M. Leyva (D-Chino) has announced her plan to introduce a bill to ban nondisclosure provisions in settlements of a broader list of sexual assault and harassment claims when the Legislature reconvenes in January. A similar bill is pending in the New York Legislature.

Remove Tax Deductibility of Payments if the Settlement Includes an NDA

In Congress’s new tax plan, there is a provision that takes away the business tax deduction for sexual harassment settlements that contain nondisclosure agreements. In the New York Times, University of Chicago Law School Professor Daniel Hemel called it “a nudge, not a hammer,” because most businesses will likely forego the deduction when forced to a choice.  It is also important to note that while the new provision impacts businesses, it does not affect government entities, such as the California Legislature.

Bar Mandatory Arbitration of Sexual Harassment Claims

Employers’ use of mandatory arbitration provisions has mushroomed over the last decade.  Now, over half the non-union U.S. employees are subject to such clauses.  In a series of cases, the U.S. Supreme Court has upheld employers’ rights to impose arbitration requirements, finding that federal law forbids states to limit them.  Given these holdings, a change in the law at the federal level is required to restrict employers’ use of arbitration provisions to keep women claiming sexual harassment out of court.

Now, California Senator Kamala Harris is one of several sponsors of a bipartisan bill the federal level that aims to end sexual harassment secrecy another way – by forbidding terms of employment contracts that require confidential arbitration, rather than an open lawsuit, for sexual harassment claims. The bill is co-authored by Rep. Cheri Bustos (D – Ill.) and Sen. Kirsten Gillibrand (D – N.Y.). According to Marina Fang’s reporting, the “Senate bill is also backed by Sens. Lindsey Graham (R – S.C.), Lisa Murkowski (R – Alaska)” and the “House version has support from Reps. Walter Jones (R – N.C.), Elise Stefanik (R – N.Y.), and Pramila Jayapal (D Wash).”

Private Action Instead of Legal Change

And a change in the law is not always necessary to address a problem like secret settlements, if powerful corporations decide, or can be nudged, to change on their own.  Microsoft recently announced that it will no longer force women alleging sexual harassment into mandatory arbitration.

With California’s newly legalized  recreational marijuana industry set to begin January 1 and projected to generate $7 billion annually by 2020, devising a banking system for all that money is a priority.  The problem is that banks, which are regulated by the federal government, won’t touch it for fear of being prosecuted criminally.

Last month, James Rufus Koren of the Los Angeles Times reported on ideas from California Treasurer John Chiang’s task force formed to study the issue.  These included a state-owned bank to handle the money, creation of “a multistate group to lobby Congress to ease federal regulations on cannabis,” and state-hired “armored car services to pick up tax payments from businesses.”

Earlier this week, Patrick McGreevy – also of the Los Angeles Times – reports that another potential solution to the federal/state law dilemma, this time out of the governor’s office, is a private collaboration of banks and credit unions working with a central “correspondent bank.” The plan is to meet federal banking regulators’ concerns in a way that protects the financial institutions from punishment.  Whether they feel comfortable enough to sign on remains to be seen.

And as my colleague, Professor Mike Vitiello, pointed out in an earlier blog post, even though marijuana will be legal in California, “use or possession of the drug in any form and in any amount remains illegal under federal law, regardless of state law.”  This reality shadows all efforts to identify “safe” banking practices that meet the needs of the producers and retailers, while also assuaging the concerns of the financial institutions considering diving into this newly legalized industry in California.

By: Chris Micheli

Overview of Regulatory Advocacy

In today’s post, I will begin a series of podcasts about how to be a more effective state regulatory agency advocate. Today’s podcast will be an overview of state regulatory agency advocacy efforts.

The first questions one might have about regulatory agency advocacy are: “What is it?” and “Is it different from legislative advocacy?” In my mind, there is not a difference between regulatory agency advocacy and legislative advocacy. On the legislative side, you are lobbying for or against legislation and dealing with the Legislature. On the regulatory side, you are lobbying for or against regulations and dealing with the executive branch of government.

The next question one might ask is, why is regulatory agency advocacy important? I like to remind people that just because a statute has been enacted doesn’t mean that the battle is over. Regulatory advocacy is another bite at the apple; it is another opportunity to limit or expand the scope of a statute.

This is no small task. Keep in mind is that there are over 200 agencies, departments, boards, and commissions that have rule-making authority in California state government and, according to California’s Office of Administrative Law (OAL), there are over 500 regulations adopted each year. These rule-making bodies engage in both quasi-judicial and quasi-legislative activities, which is how they enforce and create the rules to implement legislation.

I’ll focus on the quasi-legislative activity. California’s rule-making process is governed by the state APA – Administrative Procedure Act. The state’s APA is premised on the federal APA. What do I mean by quasi-legislative activity? I mean that the agency – or department, commission, board, etc. – engages in the rule-making process by adopting, amending, or repealing regulations.

My next podcast on the subject of regulatory agency advocacy will be released after the holidays and will be on the different types of rule-making bodies. Happy Holidays and as always, thanks for listening.

 

 

 

Negotiating Policy and Legislation

Since California’s legislative session is only getting closer and closer, I have another podcast for you today with Erinn Ryberg – Leg. Director for Assembly Member Cristina Garcia. Today, Erinn and I are discussing negotiating legislation and the policy changes within a given piece of legislation.

Similar to our conversation last week about staffing a committee, we’ll be talking about the dos and don’ts of this process.

As Erinn will tell you, one of the first things she learned when started working in the Building is that if you have a good bill, then that means it will have support and opposition because the bill will actually do something. Because of this, the bill will require some negotiating and compromise. This means that you should start with the biggest, broadest bill possible because as your bill moves through both houses of the Legislature, you will inevitably have to remove or change some parts of the bill. And of course, with all these changes, it is a tightrope walk between keeping your coalition of supporters happy while not ticking off the opposition too much.

In being able to negotiate these changes, there are some things to keep in mind. The most important thing is make sure that your stakeholders are people that you trust, that are good at their jobs, and have some influence with their bosses. When I asked Erinn how critical it is to have good stakeholders on your side, she replied, “It will make or break the bill.”

You can’t negotiate if you’re working with people that aren’t willing to budge or that don’t have the authority to give more than what is on the sheet of paper you walk into a meeting with.

You will have to listen to the rest of our conversation to glean more insights from Erinn.

By: Chris Micheli

Misconception Monday – Special Sessions

Hello, and welcome to Episode 7 of my Misconception Monday series. If this is your first time catching one of these podcasts, you can get a better sense of what they are about by checking out my previous Misconception Monday posts here.

In today’s podcast, I discuss some common misconceptions about Special Sessions. Special session is the informal term. The formal term is Extraordinary Session, because these sessions can only be called by the Governor on extraordinary occasions. You will have to listen to the rest of the podcast to learn about the other misconceptions related to Special Sessions.

By: John Sims

A dramatic confrontation over climate change took place on Monday, December 11, in the San Francisco courthouse of the United States Court of Appeals for the Ninth Circuit.  That’s the federal appellate court that includes California and the other western states.  The plaintiffs, many of whom are children, point out that the federal government is not taking adequate steps to restrict greenhouse gases, and that in fact its coal-friendly and oil-friendly policies will have disastrous consequences for the plaintiffs (and the millions of other children like them) over the course of their lives.

The Los Angeles area, because of its reliance on automobiles and dense freeway traffic, experienced some of the worst smog in the nation after World War II.  Thus, when Congress adopted the Clean Air Act in 1970 to curb pollution, California was highly motivated to support that goal.  The statute includes a provision that allows California to receive federal permission to impose limits on emissions from new motor vehicles that are more restrictive than those adopted by Environmental Protection Agency.  Other states are also allowed to opt into the stricter California standards, and a number have done so.

In recent years, California has been one of leaders in the fight against global warming on many fronts, working with other states and even foreign nations to lower the levels of greenhouse gases.  Mere mention of California’s landmark “A.B. 32” legislation from 10 years ago has been enough to induce trauma in executives in the coal, petroleum, and related industries who want to preserve the dominance of fossil fuels.  Especially as the Trump Administration has rejected the Paris Accord and other clean-energy initiatives, California has fought to keep up the momentum behind its efforts to slow global warming before it is too late.

The case heard before the Ninth Circuit earlier this week originated in the federal district court in Oregon.  That court rejected the government’s effort to have the case dismissed, and scheduled a trial for February 2018.  It is expected that the plaintiffs will present a broad array of expert scientific witnesses.  The government sought permission to take an immediate appeal, but the district court refused.  Determined to prevent the trial at all costs, the government was in San Francisco on Monday seeking a writ of mandamus (that is, an order directing the district court to dismiss the case).

Not that long ago, federal courts prohibited the possession of cameras in courthouses.  There has been huge progress on that front, and now the Ninth Circuit livestreams all of its arguments and then archives the recordings at its website.

If you would like to observe and evaluate this collision between the Trump Administration and those seeking to reduce Global Warning, you can watch the video here.  The fascinating argument took a little less than an hour.

Chief Judge Sidney Thomas of Montana (center seat) presided.  The seat on the left (from the viewer’s perspective) is Judge Alex Kozinski of California, who was Chief Judge of the Court (2007-2014).  On the right is Judge Marsha S. Berzon of California.

 

 

 

Rules for Effective Lobbying – Part 8 – Don’t Ignore the Minority Party

In today’s podcast, I talk about my eighth rule for being an effective lobbyist: don’t ignore the minority party.  There are a number of reasons supporting this rule, among them: common courtesy, you may need their votes and not realize it, you will need them on some future issue, they may raise issues that you may not have thought out, and no one likes to be ignored.

Another point I focus on in this podcast is the role of committee consultants. Every committee in the Legislature has a staff of consultants who serve the full committee. Their role is primarily to work with the chair of the committee and the majority party members of the committee as well as to analyze every bill that is referred to the committee. The minority party also has committee consultants. I’ve said previously that committee staff is your best friend in Sacramento. Well, right behind them is the minority party staff.

In the rest of the podcast, I explore the many difference between the work and role of the committee staff and the minority party consultant.  Listen to the podcast to learn the details about the many differences that can be critical to your success as an advocate. Among those differences are the bill load of the consultants, whether their bill analyses are objective and non-partisan or subjective and partisan, and if their bill analyses are public record or not.

For more advocacy tips from the faculty at McGeorge School of Law, please visit CAP·impact’s In Practice Archive. For more advocacy tips from myself, you can refer back to my previous Rules for Effective Lobbying podcasts or attend one of the next sessions of Capitol Seminars, which are hosted at the McGeorge School of Law in Sacramento.

 

 

 

Staffing a Committee

With the Legislature set to return to session in just a few short weeks, I sat down with Erinn Ryberg – the Legislative Director for Assembly member Cristina Garcia, to talk about some of the do’s and don’ts when it comes to staffing committee.

When it comes to the do’s and don’ts, the first do is common sense – read the bill. There is a plethora of information and analysis out there on all the bills and it can be easy to take what those different analyses say to be the truth. You definitely want to listen to what others are saying, but also read the bill yourself and make sure that the people you are talking to are reading the bill the same way that you are reading the bill.

The other major do is to take meetings with everybody – the people supporting a bill and the folks opposing it. You do not want to have a reputation for only meeting with certain groups or certain organizations.

On the other side of the equation, the don’ts – the biggest don’t is “don’t commit you boss to a vote unless you’re authorized to do so.” You never know what’s going to happen in the four days before a committee hearing and no matter how much you or your boss like a bill, something may change between your conversation and the hearing that can change that position. You’ll have to listen to our conversation for some tips on how you can deftly avoid answering questions about how your boss might vote on a bill.

I hope you enjoy our conversation. Let us know in the comments if there is anything else you want to hear me discuss with Erinn, or any of our other CAP·impact contributors. Or you can let us know on Twitter, @CAPimpactCA or @jon_wainwright. Thanks for listening.

By: Chris Micheli

Initiatives and Referendum

In yesterday’s podcast, I discussed common misconceptions about elections in California. Today I am taking a deeper look at elections in California. Specifically, I will be talking about initiatives and referendum – two of three direct democracy processes available to voters in California. The third process is the recall.

The direct democracy process dates back to the early 1900s and was proposed by the Progressive Party as a means to counter the all-powerful Southern Pacific Railroad. At the time, California was the tenth state to enact direct democracy procedures – the initiative, the referendum, and the recall.

As a brief overview, there are two types of initiatives – statutory and constitutional amendment. This process is used to create laws or changes to the constitution that the people of California believe the elected officials are either unable or unwilling to enact themselves. To qualify an initiative, the initiative is first drafted, then is given to California’s Attorney General for Title and Summary. Then it must gain a sufficient amount of signatures in order to be placed on the ballot. One difference between statutory and constitutional amendment initiatives is here at the signature gathering phase. In order to qualify for the ballot, statutory initiatives must receive signatures equal to 5% of the votes cast for all candidates for Governor in the previous gubernatorial election whereas constitutional amendment initiatives must receive signatures equally 8% of that number. Proponents have 180 days to collect that number of signatures.

Referendum are used to approve or reject – usually reject – recently enacted statutes in whole or in part. There are some exceptions to this that I mentioned in yesterday’s podcast. Referendum go through a similar qualification process. Referendum must also receive a number of signatures equal to 5% of the votes cast for all candidates for Governor in the last Gubernatorial election. However, referendum campaigns only have 90 days to collect the required number of signatures.

In recent years, the direct democracy process has been more often utilized by special interest groups and wealthy individuals who end up funding multi-million dollar campaigns in efforts to change the law – sometimes in a very self-serving manner. We’ve also seen recently a growth in the use of the initiative process and an increase in the cost of initiative campaigns.

We did a little calculation over the first 100 years of the initiative process being available. That is, from 1912 through July of 2013. And what we found were the following: 1,767 initiatives were given Title and Summary and circulated for signatures. Of those, 1,311 – or 74% of them – actually failed to qualify. Moreover, 92 of them were withdrawn. So as a result, 360 initiatives, or only 20% – qualified for the ballot. Of those 360 initiatives that qualified, and therefore appeared on a California state ballot, only 122 of them were approved by the people – just under 7%. So, even if initiatives are increasingly becoming the tool of special interest groups, the odds of success on the statewide ballot are pretty slim.