Protecting Free Speech with Shelby Emmett

I recently sat down with Shelby Emmett, the Director of the Center to Protect Free Speech at the American Legislative Exchange Council (ALEC, for short). Shelby, and the Center to Protect Free speech are based in Arlington, VA.

When it comes to changing policies, ALEC is an interesting organization to look at. It is the country’s largest voluntary membership organization of state lawmakers, it is a 501(c)3 policy think tank, and it has a 501(c)4 affiliate—ALEC Action. The Center falls squarely under the 501(c)3 part of the organization.

To learn more about the work that ALEC, and the Center to Free Speech, do you can visit the links above, or check out their social media feeds.

Facebook: American Legislative Exchange Council

Twitter: @ALEC_states

Shelby Emmett’s Twitter: @SpartanShelby

By: Chris Micheli

Misconceptions – Bills

Welcome to Misconception Monday. This is the first in a series of podcasts that will go up on Mondays about common misconceptions about the California lawmaking process.

Each week, I will dispel misconceptions around one aspect of that process. Today, in my first podcast in the series, I will go over misconceptions related to bills.




When California voters passed Prop 64 in the November 2016 election, they legalized the use and possession of recreational cannabis. This may sound simple, but the decriminalization and legalization of a previously illicit substance requires an intensive regulatory scheme. Prop 64 authorizes three main state agencies to promulgate cannabis regulations: The Bureau of Cannabis Control is in charge of licensing cannabis retailers, distributors, and microbusinesses; CalCannabis licenses and regulates cannabis cultivation; and the Manufactured Cannabis Safety Branch licenses and regulates the manufacturing and testing of cannabis.

The Bureau of Cannabis Control (the “Bureau”) is established within the California Department of Consumer Affairs. The Bureau is dedicated to regulating the cannabis industry, both recreational and medical, and is charged with overseeing other state departments that are given specific licensing duties in certain areas of the industry. The Bureau’s activities, as well as the activities of those departments under its supervision, are supported by the Marijuana Control Fund. In turn, the Marijuana Control Fund is supported by taxes levied on marijuana products and cultivation, as well as civil penalties for violations of marijuana regulations. These taxes go into the California Marijuana Tax Fund, which is kept separate from the state’s General Fund.

CalCannabis is set up within the California Department of Food and Agriculture. CalCannabis is the agency that regulates cannabis cultivators and importantly establishes a track-and-trace system for cannabis. It is in charge of giving licenses to cannabis growers. The track-and-trace system is essential to keeping California in line with the Cole and Ogden memos providing states some leeway with recreational cannabis, within federal guidelines outlined in the memos, as discussed in a previous post. CalCannabis will focus much of its regulatory power on ensuring that California-grown cannabis stays within the state and is not sold to underage individuals.

Finally, the Manufactured Cannabis Safety Branch (the “Branch”) is housed within the California Department of Public Health, and is charged with regulating and licensing manufacturers of cannabis products, like edibles and other THC-infused products. The Branch also regulates the transport, distribution, and storage of medical cannabis in California.

Since Prop 64’s passage in November 2016, these agencies have been working to establish a regulatory scheme comprehensive enough to meet a January 2018 “launch” date, when recreational cannabis sales are scheduled to go “live.” Even with these three agencies working hard to develop regulations in time, some issues remain unresolved – particularly the banking issue, to be covered in a later post. But for now, the Bureau of Cannabis Control, CalCannabis, and the Manufactured Cannabis Safety Branch are rapidly developing regulations to get the new recreational cannabis industry running for the new year.

By: Kim Barnes

After managing to keep its scam under wraps for at least a decade, it came to light that Wells Fargo was ripping off its customers by opening fake accounts in their name and charging them for the fees associated with those accounts. It was all part of a culture of overworking bank employees and pressuring them to meet unrealistic sales goals in an effort to increase Wells Fargo’s stock value. Making matters worse, when defrauded customers tried suing the bank, Wells Fargo would block their access to the courts by enforcing the arbitration clause that many of the customers had agreed to when first opening a bank account. By enforcing these clauses, Wells Fargo could funnel all complaints regarding its deceptive practices into private arbitration, where it would never have to answer to either a judge or a jury.

Arbitration clauses are increasingly universal—nestled in every kind of consumer contract you could imagine—ranging from nursing home contracts to student loan agreements. These clauses, which don’t need to say too much more than “I agree to arbitrate any dispute that arises between me and the corporation,” have quickly become ubiquitous as the corporate “get out of jail free card.”

This is not because arbitration is a slam dunk, per se, for a company like Wells Fargo when up against an individual customer. Arguably, however, the disparity in bargaining power between parties to a dispute has a more material effect on the outcome in arbitration than in traditional litigation. This is understandable. Traditional litigation can be far lengthier and costlier than arbitrating the same dispute; corporations that settle their claims in arbitration likely benefit from a repeat player advantage—that is, the benefit of being familiar with not only the process of arbitrating disputes, but also with individual arbitrators themselves. Statistically, this has made the arbitration process highly pro-corporate and has deterred many customers with small claims from bringing them in the first place.

Unfortunately, even when the dispute involves a corporation defrauding customers and stealing their identity, judges are almost always left with little choice but to enforce an arbitration clause if there is one. This is because over the past three decades, the federal law on arbitration—the Federal Arbitration Act (FAA)—has been interpreted so broadly by the Supreme Court that not only does the FAA now have broad preemptive authority over conflicting state laws, but judges are now instructed to “rigorously” enforce arbitration clauses, even if the underlying contract itself is potentially void. This interpretation allowed Wells Fargo to easily circumvent public courtroom scrutiny and opt for a more favorable, private arbitration tribunal.

SB 33 added one exception to the court’s general obligation to compel arbitration where there is one that covers the dispute. With the passage of the bill, a court can refuse to compel arbitration where the petitioner is a financial institution and the claim being brought involves fraud and identity theft by that financial institution.

This extremely narrow law was unsurprisingly attacked by the usual barrage of banks and chambers of commerce, which, to be fair, raised a valid criticism. SB 33, when viewed in light of the broad and highly criticized jurisprudence pertaining to arbitration, is susceptible to a preemption challenge. Indeed, the Supreme Court has found that the FAA preempts practically any state law that goes against the goals of arbitration, limits the validity of arbitration clauses, or treats arbitration clauses differently than any other provision in a contract. This is precisely what SB 33 does.

However, what is clear is that it will be difficult to argue that preventing defrauded Americans from going to court is good public policy. Whether the banks and public interest groups seek to challenge this law to the furthest extent is unclear; but if they do, with any hope the outcome will be a shift towards narrowing the FAA back to the law Congress intended almost 100 years ago. Of course, I wouldn’t recommend anyone hold their breath on that.

To learn more about SB 33, listen to my interview on “In Session,” a podcast from the University of the Pacific Law Review.

By: Ray LeBov

Not Letting the Perfect Become the Enemy of the Good

In this podcast, I talk about my third rule for being an effective lobbyist, which is not letting the perfect become the enemy of the good. While you or your client may love your bill, it is important to remember that most of the time, it is not achievable to get 100% of what is initially in your bill. You need to know where to draw the line when it comes to what you’re willing to compromise.

For more advocacy tips from me and from the faculty at McGeorge School of Law, please visit CAP·impact’s In Practice Archive or attend one of the next sessions of Capitol Seminars, hosted at McGeorge School of Law in Sacramento.




With the federal indictments of former Trump campaign officials, the President’s pardon power – which he has tweeted about and used, to exonerate Maricopa County sheriff Joe Arpaio – is again in the news.  While questions exist as to the scope of the President’s power, like whether he can pardon himself, one limit is settled – the President’s pardon power only extends to federal crimes.

A consequence of our federal system, which spreads power among multiple levels of government, is that state prosecutors may investigate potential violations of state laws at the same time as the federal special counsel investigates violations of federal laws.  So, New York Attorney General Eric Schneiderman is reportedly investigating whether the Trump campaign officials indicted for federal financial crime violations also violated state financial crime laws.

And if these or other individuals subject to the state investigations seek mercy, the President of the United States does not have the power to help them.  They must appeal to the state’s governor or otherwise seek clemency under state law.

For more on how potential Presidential pardons would affect ongoing investigations, check out Andy Wright’s Possible Presidential Pardon Scenarios on Just Security.




Advocacy in Practice with Justice Andrea Lynn Hoch

I sat down with Associate Justice Andrea Lynn Hoch from the California Third District Court of Appeal. We discussed the many facets of her work at the Court as well as her insights, observations, and tips for attorneys appearing before her, and the Third District Court of Appeal. Thank you for listening.




In the last few weeks, the skeletons began coming out of the Legislature’s closet – haunting stories of harassment of women working in and around California’s Capitol and scarier claims that the Legislature swept those reports under the rug. The claims are still allegations – not reported or investigated because the women feared retaliation.

The Sacramento Bee reported a spooky aspect of the story today: Assemblywoman Melissa Melendez has introduced a bill in each of the past four years, creating whistleblower protections for employees of the Legislature “similar to those afforded to other state employees, including civil and criminal liability for retaliation. … every year, the bill has received unanimous support in the Assembly and then died in the Senate Appropriations Committee.” Melendez’s bill, like many others, never emerged, in any of the four years, from the Committee’s “suspense file.”

For more on the stream of sexual assault and harassment stories coming out of the Capitol community: Hit by sexual harassment and assault reports, will Capitol make changes?

By: Chris Micheli

Is the Legislature complying with Prop 25 when they pass budget trailer bills after the fact?

In this podcast, I take an in depth look at an interesting situation that played itself out this past legislative session. In September of this past session, legislators passed two “junior” budget bills and a few dozen accompanying trailer bills. But was doing so proper, or even legal? We’ll explore that, and the Constitutional issues at play in that question, in my podcast.

For more on this subject, you can read an article I’ve previously written in Capitol Weekly.

CORRECTION: An earlier version of the podcast and transcript, in one section, implied that appropriations in the budget bill were not subject to a 2/3 vote requirement prior to the passage of Prop. 25.




When you think of the right to vote, you probably think about state laws.  But cities and towns make laws that control the right to vote, too.  Did you know that “in November 2016, Berkeley, California decided to lower the voting age to sixteen for its school board elections and San Francisco voters narrowly rejected a referendum to reduce the voting age to sixteen for all of its city elections?”

Professor Joshua A. Douglas of the University of Kentucky College of Law shows how municipalities in California and across the nation are trying out expanded types of voter qualifications, playing their constitutional role as “laboratories of experiment” for new ideas, or “test tubes of experiment” in Professor Douglas’s words.

For the issue brief, see Joshua A. Douglas’s Expanding Voting Rights Through Local Law.

For the full law review article, see The Right to Vote Under Local Law, also by Joshua A. Douglas.