Challenges to Lawmaking in California’s Legislative Process (transcript)

Today’s post is on the challenges to lawmaking in California’s legislative process.

Individuals and groups engaging in California’s lawmaking process may find several challenges in their legislative endeavors. There are certainly institutional challenges as well as political challenges that complicate the legislative process. These challenges must be overcome to achieve a successful outcome in enacting state legislation.

An initial, structural, challenge is California’s bicameral legislature and three separate branches of government. Naturally, in our form of government these separate branches are intended to provide a system of checks and balances on the other branches. In other words, our system of government combined with the two houses and 120 legislators that comprise the legislative branch of government means that there’s a natural, and intentional, tension in the lawmaking process.

In addition there are other institutional issues that can cause gridlock and create challenges in the lawmaking process. Two of the most commonly cited factors are term limits and the lack of bipartisanship. In the case of term limits, those who are newly elected and those who are in their final term of office are undoubtedly going to view each other’s role differently. Further, more seasoned legislators often are committee chairs, leaders, or otherwise in more influential positions to effect the outcome of pending legislation. One additional institutional factor that makes lawmaking is the sheer volume of legislation – roughly 2,500 bills per year.

Legislative rules can also create hurdles for achieving lawmaking success. For example, our state’s constitution requires a supermajority vote for passing tax increases in each house of the Legislature. The burden of achieving a higher vote threshold often increases the likelihood of failure with certain pieces of legislation.

In addition to these institutional factors we’ve covered there are also political reasons that can make the legislative process in the state of California evermore challenging. One such factor is the electoral process. In California, Assembly Members run for office every two years while Senators run for office every four years. As a result, these legislators are continually in a campaign mode and raising funds for their political races. Now, as a practical matter this can mean soliciting interest groups for campaign contributions – including those who regularly appear before legislators. Some of these legislators find it difficult to vote against their friends, especially those who might be helpful in their reelection efforts.

Other factors include the initiative process and voter approved ballot measures that constrain state spending and limit the ability of legislators to address public policy issues as well as competing funding priorities that are established by initiative for the state. These provisions of state law make it more difficult for legislators to craft solutions to public policy solutions facing the state because they often find their hands are tied by these constitutional or budgetary restrictions imposed by the voters.

In the end, there’s not a single factor that makes lawmaking in California difficult. Instead it’s a combination of factors that impact the resolution of public policy issues by the Legislature and that often result in gridlock and lack of success in lawmaking. The result can increase the partisanship in the Legislature, which then in turn creates hurdles, as both sides of the political spectrum engage in sometimes rigid ideology that in turn can create a lack of desire or need to compromise.

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.


Misconception Monday – State Budget

Hello. This is Episode 8 of my Misconception Monday series. If this is your first time tuning in to these, you can listen to the previous episodes here.

Today’s podcast, just in time for the announcement of the Governor’s January budget proposal on Wednesday morning, will cover misconceptions about the State Budget. Some of the misconceptions that we will talk about in this podcast relate to the Governor’s May Revise, the federal and state fiscal years, trailer bills, and Budget Subcommittees.




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.

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.

Misconception Monday – Elections

Hello, and welcome to Episode 6 of my Misconception Monday series. In this series of podcasts, I identify and dispel common misconceptions that are related to the many aspects of the California legislative process. You can revisit my previous Misconception Monday posts here.

In today’s podcast, I discuss some common misconceptions about elections in California. Some of the misconceptions include when the general election is held statewide for Legislators; the signature threshold for statutory initiatives and constitutional amendment initiatives; and which bills enacted by the Legislature, and signed by the Governor, are subject to referendum.

By: Mike Vitiello

In my previous post, I mentioned that many areas of marijuana law are complex and that I would discuss legal ethical issues that marijuana attorneys face. It is critical to remember that every use of marijuana violates federal law, even in states like California, where the state allows medical or recreational use. That can create problems for attorneys who work with their clients who are in the marijuana business.

While ethical rules governing attorneys vary from state to state, as a general matter, attorneys cannot engage in illegal activity. Ethical rules also prohibit attorneys from advising clients how to violate the law. This presents a dilemma for attorneys representing marijuana clients in states where marijuana is legal.

Previously, bar associations in some states indicated that an attorney advising a client on setting up a marijuana business would violate ethical rules because the business would violate federal law. More recently, however, the trend is away from that position. During the recently completed legislative session, the Legislature adopted AB 1159 that addresses some of the important questions in this area.

California is now like other states where attorneys can work with clients in the marijuana business as long as they advise them that the conduct violates federal law.

Another area that was addressed by AB 1159 was: what if an attorney uses medical or even recreational marijuana? Does that reflect badly on his or her moral character? Not anymore. The new law provides that use of marijuana is not evidence of a lack of good moral character. However, being under the influence of marijuana at work or in court might still be an ethical violation.

The area of the law that pertains to statements made by an attorney to the client or by the client to the attorney remains unclear, even after the passage of AB 1159, but you will have to listen to my podcast to hear how that area of the law is still unclear.

The Role of the Media in California’s Legislative Process

Today’s podcast focuses on the role of the media in California’s legislative process. The media’s role is so important that they’re considered a fourth branch of government and sometimes referred to as the Fourth Estate.

Their coverage – or lack thereof – can have great influence over the fate of legislation. The media can bring to light what goes on behind the scenes during California’s legislative session. They can use their coverage to draw attention to a particular piece of legislation and make the public aware of it. The media also play a large role in the ethics of legislature by covering FPPC investigations and fines, and scandals – such as in 2014 when three State Senators were suspended due to alleged criminal conduct or, more recently, in their coverage of the #WeSaidEnough movement that is bringing to light the issues of sexual harassment in the Legislature working to make this arena a safer place to work. The opinions of newspapers’ editorial boards – sought after by candidates and ballot measures in campaigns – are also important in the legislative process.

This is why taking the media into account is a key part of legislative strategy. Whether responding to a headline with a timely piece of legislation to address an issue in their local paper, or trying to get their viewpoint on a bill out to the public via an opinion piece or a letter to the editor, the media are an important means for legislators, staff, and special interest groups to have their viewpoint heard. Social media has also become important for doing this.

Prop 54, which I talked about in an earlier podcast, has also changed the dynamics with the media. Effective now, any person is authorized to take video or audio recordings of legislative proceedings – closed session excluded – and can use that for any legitimate purpose without needing to pay a fee to the State of California. Effective January 1, 2018, the Legislature will have to make audio/visual recordings of all its proceedings available online – again, excepting closed sessions.

If the role of the media are something that interests you, you should also plan on attending the McGeorge Capital Center for Law & Policy’s annual Belote Lecture on January 11, 2018. This year’s topic is Journalism in the Era of Fake News and features Jonathan Weisman of the New York Times, John Myers of the Los Angeles Times, and Joe Mathews of Zócalo Public Square. You can RSVP the event by emailing or calling (916) 739-7138.

By: Tyler Wood

The Greensheets issue of The University of the Pacific Law Review (UPLR) is a time honored tradition at McGeorge School of Law. It traces its history back to 1969, when Volume 1 critiqued legislation signed into law by Governor Ronald Reagan. We’re now on Volume 48. Greensheets is more than just the most popular Law Review issue of the year, but it’s also one the most widely read issues of any law review in the country by state legislators, judges, and lobbyists.

So what is Greensheets, exactly? Authoring the Introduction to UPLR’s first volume (then known as the Pacific Law Journal), Earl Warren, then Chief Justice of the United States Supreme Court and former Governor of California captured the enduring vision that still guides our work today, saying in part:

“Without detailed information on the legislative history of a given bill, the courts, of necessity, are left to their own resources to determine the rationale underlying a particular statute. It is such information, together with a critical analysis of newly enacted legislation, which the Pacific Law Journal intends to provide. For that reason, I believe it to be a welcome addition to the field of jurisprudence, and I extend to the staff of the Journal my best wishes for a successful endeavor.”

Today on the podcast, I recap the bills In Session covered this year and provide updates on whether each bill ultimately became law. Thank you so much for following these blog posts and listening to our podcast this season. Stay tuned next fall to hear a new host talk about a new group of bills with a new group of staff-writers. And make sure to check out all of our episodes from Season 1. The bills we looked at this year were:

Episode 1: SB 258 – Cleaning Product Labeling

Episode 2: AB 954 – Food Labeling

Episodes 3 & 4: SB 10 – Bail

Episode 5: AB 1008 – Employment Discrimination

Episode 6: Nevada AB 391 – Bestiality

Episode 7: AB 1528 – Cannabis

Episode 8: AB 1227 – Human Trafficking

Episode 9: SB 33 – Arbitration Clauses

Episode 10: SB 54 – Sanctuary State

Tyler Wood is the Chief Legislation Editor for the University of the Pacific Law Review and law student student at McGeorge School of Law in Sacramento.

Misconception Monday: Bill Amendments

Welcome to Episode 4 of my Misconception Monday series of podcasts. In today’s episode, we will dispel common misconceptions about bill amendments. If you want to get a better sense of what this series is about – and to learn about other common misconceptions about the California legislative process – you can refer back to my previous Misconception Monday posts on bills, bill deadlines, and bill referrals. I hope you learn something, and more importantly, enjoy.