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!

There have been thirteen firearm attacks on school campuses resulting in injury or death across the United States since the beginning of 2018,and five more instances of gunfire on campuses – two of which occurred in California. All of this, combined with the mass shooting in Parkland, Florida and the and the ongoing work of the survivors of that shooting have catapulted gun safety towards the top of 2018’s major issues. In response, Senator Anthony Portantino (D-La Cañada Flintridge) has a bill to raise the minimum age to purchase a rifle to 21.

California law already restricts handgun sales to only persons over 21 and to a maximum purchase of one handgun every 30 days. However, for purchasing rifles, 18 is the minimum age. Portantino’s bill would have rifle restrictions mirror the restrictions on handgun purchases, raising the minimum age to 21 and limiting purchases of rifles to once every 30 days.

It is not uncommon for California legislators to propose legislation to limit the sale of firearms. In 2016, the California Legislature passed a bill banning the sale of assault rifles and required registration by owners. A bill, similar to Sen. Portantino’s, limiting rifle purchases to every 30 days was defeated last year in the Assembly after the National Rifle Association opposed the bill.

This bill is not without its opponents. Sam Paredes, Director of Gun Owners of California, argues that the proposed restrictions are excessive. He notes that 18 year-olds are allowed to serve in the military, vote, and drive cars. Other proponents of the freedom to purchase weapons are not hesitating to condemn the revised legislation as well.

As mentioned earlier, 2018 has had two school shooting incidents in California. On January 10, at California State University, San Bernardino, bullets were fired through a window, with no suspects or motive identified. Later, on February 1st, a semi-automatic handgun brought to school in Los Angeles by a 12-year-old student accidentally went off. Four students were injured.

Sen. Portantino’s legislation joins dozens of other bills on guns working their way through the California Legislature this year. It will be interesting to see where they all land.




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.




The big news from late last week, and last weekend, was State Senator Tony Mendoza’s (D- Artesia) resignation from the California Legislature moments before the State Senate was going to vote on whether or not to expel him. His fiery resignation letter hinted that he was not ruling out running for re-election to the position he was resigning from. Over the weekend at the California Democratic Party’s convention, Mendoza made it clear that he is running for re-election.

There is nothing in the Joint Rules of the Senate and the Assembly, Senate Rules, or the California Constitution that prevents Mendoza from doing so after resigning. Actually, had Senator Mendoza been expelled, there is still nothing that prevents him from running for re-election. And should he win re-election, there is nothing in the California Constitution, Senate Rules, or Joint Rules that allows the California Senate to not seat him. Considering Mendoza’s current lawsuit against the Senate, it would not be surprising if he were to sue again should the Senate take actions to remove him from that body.

Something clearly needs to be done. As part of the California Legislature’s overall effort to clean house and make the building a safer work environment for staffers there should be something in place – rule, law, or otherwise – that prevents those who resign, or at the very least are expelled, due to sexual harassment from returning to the Legislature. This current gap in rules and law that allows lawmakers who have resigned or been expelled over sexual harassment to return to office is a glaring hole in the protections for staffers.

The bill introduction deadline for 2018 was 1½ weeks ago, but there are a few options legislative options the Legislature could pursue – gutting and amending a bill, or introducing a committee bill among –  for there to be a legislative fix this year. Even then, the new legislation would need to have an urgency clause added to it – making the bill effective immediately upon the Governor’s signature, but requiring a 2/3 vote in each house to pass – for it to prevent Mendoza from taking a seat in the State Senate. Without the urgency clause, the new law would go into effect in January of 2019; after Mendoza would have taken his seat in the Senate should he win re-election. But in the likely case that the sexual harassment allegations against Mendoza become a campaign issue, and he still gets re-elected, the law could be challenged in court on the basis that voters knew about the allegations and his resignation, and elected him anyways.

If the California Legislature truly wants to address this issue, it could put a constitutional amendment on the ballot and have the voters decide on whether or not a member of the Legislature who resigned or was expelled from their position can be allowed to be re-elected to a position in the Legislature. Constitutional amendments, unlike bills, are not beholden to legislative deadlines and can be introduced in the Legislature at any time. That constitutional amendment could be on the ballot come November. And a statewide vote on the amendment, were it to pass, would counter the voter argument Mendoza could use against a change in statute that I mentioned earlier.

However, as was shown recently with Prop 8, even constitutional amendments that are passed by California’s voters can be challenged and taken to the California Supreme Court. But for this to go that far, it will come down to appetite of Mendoza, and/or some other Senators to be named, to continue the fight to that point.




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.




Agencies Supporting the California Legislature

Today’s podcast looks at legislative branch support agencies. While there are quite a number of important entities, the first and foremost of the entities supporting the California Legislature is the Office of Legislative Counsel.

Legislative Counsel, or Leg Counsel for short, is a nonpartisan entity that drafts legislative proposals, prepares verbal and written opinions, and provides other confidential legal services to members of the Legislature and the Governor. Every piece of legislation and every amendment must be accompanied by a Legislative Counsel Digest, which summarizes existing law and describes how the measure changes existing law.

The next entity is the Legislative Analyst Office – LAO. The LAO has provided fiscal and policy advice to the California Legislature for over 75 years. It is well known for its fiscal and programmatic expertise and its nonpartisan analyses of the California State Budget.

The LAO’s work helps set the agenda for the work of the Legislature’s fiscal committees, particularly the two budget committees, in developing the Legislature’s version of a state budget. Staff of the LAO’s office work with the legislative committees throughout the budget process, particularly the budget subcommittees, and they provide public testimony on their recommendations.

LAO used to analyze pending legislation. However, due to significant budget cuts from Prop 140 in 1990, the LAO now only analyzes the state budget. However, the LAO does have the role of preparing the ballot analyses for each measure that is submitted to the electorate on the statewide ballot.

There are two other entities that I go into greater detail in the full podcast. Those entities are the California State Auditor, which is formally known as the Bureau of State Audits, or BSA, and the California Research Bureau, which is an arm of the California State Library.

I hope you find this brief overview of legislative branch support agencies helpful.




Comparing Congress and the California Legislature

Today’s podcast will explore some of the differences between Congress and the California Legislature.

Obviously, the California Legislature is based upon the United State Congress, and certainly, both are prominently featured in the state and federal constitutions. We’ll start with some similarities that I highlight in the audio before moving on to discussing a few of the differences.

Both the US Congress and the California Legislature make laws. They both have investigatory powers. They adopt state budgets. Their Senates confirm executive branch appointments. In both Congress and the California Legislature, the political parties and the party leaders dictate most of what happens in the legislative process, as well as the ultimate outcome of legislation.

Let’s move on to some differences. The most obvious is size. The US Congress has 100 Senators and 435 Representatives; the California Legislature has 40 State Senators, and 80 Assembly Members – the equivalent of a Member of the House of Representatives.

Another difference is term limits. In the California Legislature, legislators are restricted to serving only 12 years, either all in one house or split between the two. There are no term limits in Congress.

A procedural difference between the two bodies is the filibuster. In the US Senate, a minority of senators can forestall legislation by use of the filibuster – an unending debate, which can bring the entire operation of the US Senate to a standstill unless there is a cloture motion. For a cloture motion to succeed, there needs to 60 votes in favor. In the California Legislature, there is no filibuster.

I go into greater detail with other differences between these two legislative bodies in the full podcast. I hope you’ll give that a listen and enjoy.

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.