It’s time for another recap of all the news we here at the McGeorge Capital Center for Law & Policy have been thinking about this past week.




CBC News and the Toronto Star

‘I’m getting ripped off’: A look inside Ticketmaster’s price-hiking bag of tricks by Dave Seglins, Rachel Houlihan, Valérie Ouellet, and William Wolfe-Wylie

Jon’s take: I used to go to a lot more concerts than I do now. There’s a number of reasons for that, but one the biggest reasons was that I go sick of seeing the face value for a ticket, getting to checkout, and after service fees essentially paying twice the face value of the ticket. I got sick of giving Ticketmaster my money, and when I do go to concerts now I mostly go to venues like Ace of Spades here in Sacramento that use Eventbrite for ticket sales. Long story short, this article gave me a new crop of reasons to not be a fan of Ticketmaster. And serious props to the journalists at the Toronto Star and CBC News for some excellent investigative journalism.




Orange County Register

California tries to make the world play by our rules by Tom Campbell

Chris’s take: I respect Professor Campbell’s perspective on this pending legislation and so many other issues that he has offered his perspective on over the years. I enjoyed working with him while he was briefly in the State Senate and then as Director of the Department of Finance under Governor Schwarzenegger. He has served as the Dean at Haas School of Business at UC Berkeley and then as Dean of Fowler School of Law at Chapman University. What an amazing public servant.

I am particularly interested in this op-ed because I worked on the legislation that he write about – SB 826 (Jackson), which is pending final action by the Governor prior to September 30. And I agree with Professor Campbell about his point that California might try to impose its societal views on the rest of the country if it can impose requirements on out-of-state incorporated businesses. Why couldn’t California impose its labor laws or tax laws on foreign corporations, for example?




The Hill

Trump attacks on Session may point to his departure by Olivia Beavers and Jacqueline Thomsen

Molly’s take: ‘Another one bites the dust’ is the song that comes to mind when I check off all of the officials that President Trump has either fired, forced to resign, or had unexpectedly quit. It seems that Attorney General Sessions may be safe until after the midterm elections, but after that, one can only guess.

Trump stated that he doesn’t “have an attorney general.”

Well it seems to me that President Trump will be uprooting another position in the Executive Branch, and everyone on the Hill is expecting it. The question is when.


California’s Largest Wildfire Has Finally Been Contained by Antonia Blumberg

Molly’s take: After a fire-filled year, the U.S. Forest Service says the largest wildfire on record in California is 100 percent contained.  All I can say, is ‘Thank You’ to the hardworking firefighters who are tirelessly working on putting out the fire. Over 720 square miles have been burned since July when the fire began.

As someone who has seen their previous homes burned by fires, this article hit me particularly hard. Memories of cutting grass around the family home and seeing scorch marks across the side of the garage were brought back. This year, my family was lucky, our home was not at risk. The same cannot be said for hundreds of families across California, including classmates and friends here at McGeorge, who lost their homes.

As we continue into the colder season, hopefully, we will stop smelling smoke and ash and prepare for another fire season next year.

On today’s episode of The CAP·impact Podcast, I sit down with McGeorge adjunct professor, and very good friend of the podcast, Chris Micheli, to talk about recent California Supreme Court decision in Dynamex Operations West, Inc. v Superior Court.

For those unfamiliar with the case, it, in essence, drastically changed how independent contractors are classified in California. Chris and I talk about what the old rules were, how the Dynamex decision will effect employers in the traditional economy space – as well as the new gig economy – and what we can reasonably expect to see the Legislature do in the upcoming year to address some of the issues raised by the business community by Dynamex.

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And last but not least, you can learn more about the Capital Center for Law and Policy at McGeorge School of Law here.




What Makes California lawmaking difficult (transcript)

Today’s podcast is on what makes lawmaking in California difficult. There are a number of factors that influence the lawmaking process generally and make it particularly an arduous process in the state of California.

I think that the difficulty in the lawmaking process in California starts with the bicameral legislature. That is, we have two houses of the legislature, as well as separate branches of government, each of which play a critical role in California’s lawmaking process. There’s naturally going to be tension in the lawmaking process as these three branches of government and two houses of the Legislature have an equal say in adopting legislation.

There are also a number of institutional issues that can affect and cause gridlock and other difficulties in the lawmaking process such as term limits and the lack of bipartisan cooperation. Those are often the two most cited examples.

For term limits, there are newly‑elected officials versus those who are in their final terms of office. Undoubtedly, these individuals have a different role and a different view that they bring. Do they view themselves as equals? Is there a difference between a freshman legislator and one that’s on his or her way out?

Sometimes legislators, in the early stages of their career, are on a steep learning curve, not just about the issues, but also about the institutions and the legislative process itself.

There are times where political extremes from both sides of the political aisle impact the legislative process. Is there a lack of bipartisan cooperation? What about between the two houses and the legislators themselves?

Without collegial working relationships, coming to consensus is harder in the legislative process, and laws enacted along party lines are less stable. If everyone does not agree to what is the best answer to addressing a public policy issue, then that often causes concern.

In addition to some of these institutional factors, there are also a number of political reasons that make the legislative process in the state of California difficult. Constituents, the public generally, and the media expect quick action by the Legislature on public policy issues facing the state of California.

One is the electoral process. Assembly members have to run for office every two years while Senators run for office every four years. Some of these legislators, particularly those in the state Assembly, have to continually be in campaign mode and raise funds throughout the legislative process.

This means soliciting interest groups for campaign contributions, including those who regularly appear before them in the California State Legislature. Some legislators find it difficult to vote against their friends, especially those who are helpful in their re‑election campaign efforts.

Also the initiative process and a number of voter‑approved ballot measures that constrain state spending, limiting the ability of legislators to address public policy issues. Moreover, competing funding priorities that have been set forth by the electorate create difficulties for lawmakers as well as hurdles to enact budget priorities.

In the end, there isn’t a single factor that makes lawmaking in California difficult. Instead, it’s a combination of political and institutional factors that impact resolution of public policy issues facing the legislature. These often result in gridlock and a lack of success, or on occasion, one‑sided results that leave others with the process unhappy.

Early returns are in from yesterday’s primary election here in California. Below is a recap of some key statewide races and some of the key Legislative and Congressional races with my thoughts on what last night’s results mean for the election in November. Unless otherwise noted, all the numbers referenced are courtesy of the hard work of the team at the Los Angeles Times (as of 10:00am) which has a running tracker of election results in California.


Lt. Governor Gavin Newsom (D) and businessman John Cox (R) advance to the General Election. While Cox has the support of President Trump and can self-fund his campaign. Newsom, who has been running for the job since 2015, has a sizeable war chest and California’s demographics on his side.  Democrats outnumber Republicans in California by nearly 2 to 1 (closer to 1.77 to 1), and as of May 21, there are more No Party Preference voters in California than Republicans. Newsom is currently ahead of Cox by a little under 300,000 votes, despite sharing the ballot with three other major Democratic candidates. Despite what President Trump thinks, I’d expect Newsom to strike Lieutenant from his job title and become California’s next Governor in November.

U.S. Senate

2018’s U.S. Senate race will be a repeat of 2016 as two Democrats will face off in November. Incumbent U.S. Senator Dianne Feinstein has a sizeable advantage in terms of campaign cash and name ID over former State Senate Pro Tem Kevin De Leon, as evidenced by Senator Feinstein garnering 3.89 times as many votes as De Leon. This looks to be a replay of the Hillary/Bernie fight in 2016. I’d expect Senator Feinstein to keep her job.

Insurance Commissioner

Steve Poizner looks to be the first major No Party Preference candidate to make it to the General Election under California’s Top Two rules. Granted Poizner has previously held the Insurance Commissioner post and was formerly a Republican. Should Poizner be successful in his bid for Insurance Commissioner, he may be paving the way forward for more moderate Republicans looking to make an impact at the statewide level. He’ll face off against Democratic State Senator Ricardo Lara in November. Less than 25,000 votes currently separate the two, but Lara did have competition from fellow Democrat Asif Mahmood. This will be an interesting race to watch come November.

Gas Tax Proxy Fight

State Senator Josh Newman faced a recall election for voting in favor of the gas tax increase last year, and it appears that his yes vote will cost him his job. Voters favored the recall to the tune of 59% and will send former Assembly Member (and opponent of Josh Newman in the 2016 State Senate race) Ling Ling Chang to the State Senate to replace him.

The recall was viewed by many as a proxy fight for the upcoming repeal of the gas tax that will be on the ballot in November. Results here indicate that the new taxes and fees that are guaranteed to go to fixing California’s roads and bridges are in jeopardy with momentum currently favoring the repeal effort.

#MeToo at the Ballot Box

SD 32 Special Election – In the Special Election to fill out the rest of former State Senator Tony Mendoza’s term (he resigned earlier this year just before his colleagues were going to vote to expel him) came in third. In the primary election to determine who will take the seat for the new term, Mendoza is in fourth and more than 6,400 votes behind second-place finisher Bob Archuleta.

Special Elections in AD 39 and AD 45 – Democrat Luz Rivas came out ahead in the special election to replace Raul Bocanegra, who resigned last year. Rivas also came in first in the primary election for the next term.  Similarly, Jesse Gabriel (D) came in first in the special election and primary election to take over for Matt Dababneh, who also resigned.

AD 58 – Asm. Cristina Garcia (D) came in first in her primary, with Republican Mike Simpfenderfer close behind her in second. Garcia just returned to the job after taking an unpaid leave of absence from her position while allegations of sexual harassment against her were investigated. The investigation determined those allegations to be unfounded, although that result is being appealed.

The Fight to Flip the House

CD 10 – Democrats have been eyeing Rep. Jeff Denham’s seat as one to flip for as long as he’s held it, and an overabundance of Democratic candidates in the district could lead to them being shut out of the general election. Democrat Josh Harder currently sits in second, but leads Republican Ted Howze by 850 votes. The combined vote total for Democratic candidates was 31,308 – 6,600 more than Denham received. Had Democrats coalesced around just Harder instead of fielding six candidates, Denham would be biting his nails instead of Harder.

CD 22 and 25 – Incumbent Reps. Devin Nunes (R – CA 22) Steve Knight (R – CA 25) look to be safe. Both pulled in over 50% of the votes last night. Although Katie Hill, currently in second against Rep. Steve Knight, can coalesce the party support and get a boost from voters looking to put more women into office, she could give the incumbent a run for his money.

CD 39, 45, 48, 49, and 50 – These races in Orange and San Diego counties were where Democrats faced the serious possibility of having no candidates in the General Election, despite these districts going for Hillary Clinton over Donald Trump in 2016. That’s because a glut of Democratic candidates nearly created a circular firing squad situation. Instead, it appears Democrats will have candidates on the ballot in November in each of these races. CD 39 and 49 are open seats and will be very competitive. The races in CD 48 and 50 feature embattled incumbents and should also be competitive. Of these five races, Rep. Mimi Walters (R) in CS 45 seems the safest, but all of these will be closely contested races and could be key in determining control of the U.S. House of Representatives.


McGeorge Capital Center for Law & Policy Director, Professor Leslie Gielow Jacobs, appeared yesterday on KCRA in Sacramento to talk about allegations made yesterday by California Insurance Commissioner, and candidate for Attorney General,  Dave Jones against current California Attorney General Xavier Becerra. You can catch her comments in the video below.

Jones’ campaign released a statement following Attorney General Becerra’s from attorney Amber Maltbie (McGeorge, 2009) which read, “First, the Government Code Section 8314 prohibition on state officials filming campaign commercials in a state building supersedes any permit or permission that Becerra was able to obtain from the Film Commission or Highway Patrol using his influence as Attorney General. Second, the California Film Commission website states explicitly that there is no process to film inside an Appellate Court of the State of California. ‘Filming requests for appellate courtrooms located within state office buildings will not be considered.'”




The Governor’s Role in the Legislative Process (transcript)

Today’s podcast is a look at the governor’s role in the legislative process.

As you well imagine, California’s Governor is a key player in the legislative process, even though the bulk of legislation is done by the elected members of the Legislature in the Assembly and the State Senate. It’s important to appreciate the various roles that the state’s chief executive plays in the legislative process.

In a quick look at the administration and the legislative process, we know that the Governor of California has a significant impact – both with regard to specific legislation as well as the budget and funding priorities of the state.

As such, it’s critical that interested parties work with the administration throughout the legislative process, which includes the members of the Governor’s office, the Department of Finance and relevant state departments and agencies. Some of the other commonly known roles the Governor has include identifying issues for the legislature to address. He or she has the authority to call the California Legislature into extraordinary or special session. And, of course, he or she has the final say, absent a veto override, over individual bills.

Because of the Governor’s multiple roles in the legislative process, he or she can lead and influence public policy development, as well as often set the major legislative agenda items for the legislative session.

I hope you will enjoy this opportunity to look at some of the roles of the Governor, with particular attention to the chief executive’s role in the legislative process. Remember that the Governor has many tools and powers to control and influence legislation in California. As a result he or she plays a prominent role in any lawmaking by the California Legislature.




Other Types of Lobbying

Today’s podcast is a follow up on last week’s post about the different types of lobbying clients and services. Today we’ll be looking at other types of lobbying.

Although most lobbying occurs in the legislative and regulatory arenas generally, there are several other types of lobbying – such as grassroots lobbying as well as advocacy before specific agencies that often have unique rules and procedures for lobbying those agencies. Today’s podcast will discuss grassroots lobbying as well as a few of those specialized state bodies that lobbyists should be aware of.

Grassroots lobbying, which is sometimes referred to as indirect lobbying, involves members of the general public as opposed to those directly impacted by a bill or issue. In essence, grassroots lobbying is an effort to cajole members of the general public into contacting their elected officials so that the members of the public are lobbying the decision makers.

This type of lobbying requires educating large groups of individuals and then mobilizing them into some sort of call to action. It usually involves efforts to get specific organizations or community groups to become involved in the efforts to pass or defeat pending legislation or regulations.

Educating the public can take multiple forms: such as direct mailers, social media, paid or earned media, press conferences, etc. Outreach efforts are key to successful grassroots lobbying and the media often play a critical role in these outreach efforts.

Now let’s turn to lobbying some of those specialized agencies. Some of the state agencies that have specialized lobbying rules and procedures include the Public Utilities Commission, PUC, the California Coastal Commission – the Coastal Commission – and the California Air Resources Board – CARB.

In general, a lobbyist is one who is paid to communicate with officials for the purpose of influencing legislative of administrative action. This is the definition of lobbying in the Political Reform Act in the Government Code. In the brief podcast, I go into more depth about some of the specific rules for lobbyists lobbying the PUC.

It’s important for lobbyists to be aware of rules regulating conduct when lobbying different state agencies and departments. These rules need to be reviewed prior to undertaking any activity, and then of course, you have to follow them to ensure proper compliance. Otherwise, both the lobbyists and his or her client could be adversely impacted.




Types of Lobbying Clients and Services

Today’s post is on the types of lobbying clients and services provided. There are several different types of clients that contract lobbyists have, each requiring different levels and types of services. Some clients are at a low end of the service spectrum while other clients are at the very high end, requiring daily attention.

Contract lobbyists may have a myriad of clients in different industries while others may specialize in specific types of clients. Regardless of the subject matter of the client’s interest, there are essentially four types of clients: monitoring, lobbying, consulting, and procurement.

Monitoring clients simply desire to know what is happening at the Legislature and/or with regulatory agencies and the Governor’s office. This type of client requires a lobbyist to monitor relevant legislation and regulations, sometimes budget items, and politics generally involving particular issue areas or industries. As a result of monitoring legislation and regulations, lobbyists may work with their clients to develop strategic plans, designed to meet their near-term and long-term objectives.

The next type of servicing is lobbying. These services can range from supporting or opposing legislation or regulations, or sponsoring bills, to make specified changes in the law. There are essentially three types of lobbying – legislative lobbying, regulatory advocacy lobbying, and budget advocacy.

Legislative consulting and advocacy services usually include research and analysis of policy issues, daily monitoring of legislation introduced and amended, and advocacy for and against legislation affecting clients. Regulatory advocacy is similar, but it’s a world unto its own with separate rules. Lobbyists help their clients meaningfully engage in the public comment period and the formal hearings when regulatory bodies engage in their quasi-legislative activities.

The next type of client and service is consulting. This type of client doesn’t require lobbying or advocacy services, but instead desires to retain a lobbyist to provide consulting or advisory services. These types of clients want active advising regarding what they should be doing such that the lobbyist provides political advice or consulting to the client, such as how to navigate the legislative or regulatory processes, identify viable candidates for open seats, and recommend candidates without actually advocating.

The last type of lobbying service provided is procurement lobbying. These types of lobbyists do not have to register as a lobbyist under the Political Reform Act. In this role, lobbyists try to secure contracts for the purchase of goods or services by the State of California.

In 2013, Senator Hannah-Beth Jackson (D-Santa Barbara) proposed a bill to allow teens aged 16 and 17 to preregister to vote in order to promote registration and involvement in the political system. This bill, SB 113, was signed into law and enacted in 2014, and is now part of the California Elections Code §2102(2)(d).

Just last week, Sam Mahood, a spokesman for Secretary of State Alex Padilla, posted on twitter the results for an 18-month study on preregistrations under the new Elections Code.

The results demonstrate a trend among young voters- almost 44% of preregistrations listed ‘No Party Preference’ with about 37% selecting ‘Democrat’ and 10% as ‘Republican’.

Preregistrations have increased in numbers over the past years. Padilla attributed some of the uptick in preregistration to current events, such as the Parkland, Florida shooting.

“The shooting has high school students very active, aware and engaged,” he said. “We’ve seen the numbers go up even recently.”

Whether this increase in registration and lack of party affiliation will continue will be followed over future years.





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.