The deadliest fire in California history is still raging, and there still hundreds of people unaccounted for in this ongoing tragedy. In addition to earning that moniker, the Camp Fire is also “the most destructive in California history … 8,817 structures have been destroyed, including 7,600 homes.”

Like the fires in 2017, Pacific Gas & Electric (PG&E) appears to be the focus of the finger pointing. There’s already talk of lawsuits directed at PG&E – should they be the ones found responsible for the Camp Fire. California State Senator Jerry Hill is in the camp of those who believe PG&E is to blame, telling Politico, “The main culprit here is the spark, and what cause the spark. … Here, PG&E reported a break in their line where the Camp Fire started. It looks like there’s a causal relationship there.”

Politico is further reporting that Sen. Hill is “having a number of conversations” about introducing legislation in the 2019-2020 session that would create a statewide publicly owned utility company – a la SMUD here in Sacramento – as an alternative to investor owned utility like PG&E.

Sen. Hill is a well-known antagonist of PG&E, so his stance is not surprising. And it also needs repeating the Cal Fire is still investigating the cause of the Camp Fire, so it could very well mean that PG&E is not responsible this time.

However, if PG&E is found responsible for the Camp Fire, things could get very expensive for the utility very quickly. That’s because SB 901 – last year’s grand compromise on wildfire liability – allows utilities like PG&E to pass on the cost of lawsuits to ratepayers for 2017’s wildfires and for wildfires sparked after Jan. 1, 2019, leaving PG&E shareholders on the hook for the Camp Fire it be determined PG&E was liable. Should that be the case, I would not be surprised if PG&E sponsored legislation in 2019 in an attempt to shift costs of the Camp Fire from shareholders and on to ratepayers.

Looking ahead – between potential lawsuits, the cost of lobbying, and dealing with unbridled rage of Northern Californians who have lost their loved ones, their homes, and their possessions – it is increasingly looking like PG&E will have hell to pay in the near future.

The Sacramento Bee on Tuesday announced another round of layoffs in its newsroom. 15 more journalists are being cut, including Ed Fletcher who announced his layoff on a Facebook Live Feed.

“It’s a big hit. It’s a sad day for the news industry,” Fletcher said. “If you haven’t been paying attention, it’s a bad time for the news industry.”

The Sacramento Bee states “[t]he object of this newspaper is not only independence, but permanence.” With the changing times, local newspapers such as The Bee have been struggling against the alleged fake news circling the internet. Mistrust directed towards journalists is a fatal flaw that leaves news companies struggling to maintain readers and support.

Having journalists is key to promoting independent reporting of national and international news. It is even encoded into our 1st Amendment rights to have freedom of the press to report.

The Annual Mike Belote Endowed Capital Lecture held earlier this year addressed these struggles and the importance of independent journalists in our current political atmosphere. If you haven’t already seen it, please enjoy the timely expert panel.

 

 

 

As I’ve discussed before, the #MeToo and We Said Enough movements are starting to bring change to the California legislature’s persistent culture of sexual assault and harassment. That process of bringing change has been slow, perhaps too slow.

Furthering that concern are the reports about state Senator Tony Mendoza. He is under investigation for sexual harassment and misconduct and agreed earlier this month to take a paid leave of absence. However, after taking his leave, he has returned to the Capitol to work on legislation as well as attend and host events. He’s remained active in his district as well, posting pictures from a boat tour he hosted for high school seniors this past weekend. It needs to be noted that he has consistently denied the allegations against him. His actions – which fly in the face of the spirit of, if not the letter of, taking a leave of absence – are in line with these denials.

Mendoza’s actions led to current Senate President Pro Tem Kevin De León stating that Sen. Mendoza “does not have an understanding of the gravity of the situation with no decency and little respect for the institution.” My feeling is that statement driven as much by De León’s need to create space between the sexual harassment scandal that came to light while he was Pro Tem and the rest of his record in the California legislature if he wants to have any chance of being competitive in his campaign against incumbent U.S. Senator Dianne Feinstein as it is by outrage at Sen. Mendoza’s actions.

That leads me to an interesting report by Melanie Mason of the Los Angeles Times about local Democratic Party activists who are asking candidates “in explicit terms to divulge any history of sexual harassment.” This development could be a tipping point in changing the culture in the California Legislature and rooting out bad actors.

I’ve worked with candidates and shepherded them through the party endorsement process in the past. Questionnaires sent to candidates by local party clubs are the first, and sometimes the only, step in gaining that group’s endorsement. That endorsement means access to volunteers, it means potential campaign contributions, and it makes securing the party’s endorsement easier. When it comes to earning the party’s endorsement, these local club endorsements are beneficial because they send delegates to the party convention who are bound to vote for the candidate their club endorsed. By racking up club endorsements it becomes much easier to get the requisite number of votes at convention to receive the party endorsement. That’s the background to why these endorsements matter. The main reasons they matter are the access to volunteers that their endorsements bring, and more importantly, the potential access to money.

Campaigns run on volunteers. They are the foot soldiers who are out knocking on doors and calling voters. The more volunteers that a campaign has access to, the more voters it is able to directly contact. But these local clubs also collect membership dues and fundraise and can donate to candidates’ campaigns. Party endorsed candidates – and again, local endorsements help lead a state party endorsement – can receive contributions from the state party. More importantly, the state party can raise unlimited amounts of money, and through independent expenditure councils (I.E.’s), spend unlimited amounts of money. If sexual harassment becomes a line in the sand for local activists there is potential for incumbents who have sexual harassment in their history to lose support that they previously had. If that happens, volunteers go to other campaigns or stay home, money for direct mail or TV or radio ads dries up, and I.E.’s either disappear or fail to materialize.

All of that combines for a much harder reelection bid, and potentially, lead to a new wave of elected officials replacing an older crop of bad actors.

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 mcgeorgeevents@pacific.edu or calling (916) 739-7138.

 

 

 

On Tuesday, Dec. 5, the U.S. Supreme Court will hear oral argument in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission.  Colorado civil rights law requires vendors to provide their products and services without discrimination according to, among other things, sexual orientation.  A Colorado baker claims that the U.S. Constitution trumps the state nondiscrimination law, and protects his right to refuse to bake a cake for a gay couple’s wedding celebration.  Several key distinctions explain the constitutional boundary between the baker’s right to refuse service and the state’s power to regulate.

Freedom of Religion Under the Constitution vs. Federal Statute

The baker claims that the state requirement that he provide a cake to be displayed and consumed at a gay marriage violates his freedom of religion.  Because he complains about the application of a state law, he must base his claim only on the U.S. Constitution.  In this respect, he is different from the owners of the Hobby Lobby retail chain, who several years ago successfully argued that the federal Affordable Care Act violated their freedom of religion by requiring them to pay into an insurance fund that could be used to finance birth control.  A different, more religious freedom-friendly test applied to the Hobby Lobby owners because they challenged a law enacted by Congress than the test that applies to the baker who challenges application of a state law.  Specifically, people claiming a burden on their free exercise imposed by federal law can claim an exemption from a neutral requirement, such as that all employers fund preventative health case such as contraception, by showing the law imposes a substantial burden on them because of their particular religious beliefs.  By contrast, to prevail under the federal Constitution and avoid application of a state law requirement, a person, like the Masterpiece baker, must show that the state law singles him out for especially disadvantageous treatment because of his religious beliefs.  The Colorado law does not do this.  It applies neutrally to all businesses.  For this reason, as Dean Erwin Chemerinsky explains in a recent op-ed, the baker’s free exercise of religion claim is weak.

Freedom of Religion vs. Free Speech

Because the Masterpiece baker cannot prevail on his free exercise of religion claim, he primarily claims that the Colorado law unconstitutionally compels him to speak.  To succeed on the speech claim, the baker must convince the Court that the cakes he bakes qualify as “speech” protected by the Constitution.  The Court has made clear that it will not accept that “an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea.”

Instead, it requires both that the speaker intend to send a message and that the audience be likely to understand it.  So, to prevail on his compelled speech claim, the baker must transform the conduct of creating and providing a visually appealing, edible product into a message of endorsement from him, likely to be understood by wedding attendees, of the event at which it will be displayed and consumed.  The constitutional determination of whether wedding cake viewers understand a message from the baker must be made from the perspective of reasonable observers within the community, not according to the baker’s subjective assessment of his own messaging.  And, as Professors Dale Carpenter and Eugene Volokh point out in their amicus brief, viewed objectively, the answer is obvious: “No one looks at a wedding cake and reflects, ‘the baker has blessed this union.” A generic cake without overt messaging, however lovely, is not constitutionally protected speech.

Message vs. Status Refusals to Serve

The First Amendment protects people from being required to participate in sending messages with which they disagree.  Professor John Corvino points out in a recent New York Times op-ed, that a baker’s claim would be more likely sound if he refused to decorate a cake with two grooms, or if she refused to write on a cake, according to a client’s request, “Homosexuality is a detestable sin.”  Instead, the Masterpiece baker’s claim is that he may refuse to provide a cake without identifiable pro-gay marriage messaging to gay people because its use at the reception compels him to endorse the event.  According to Corvino, the latter baker’s “objection was about what she sold; a design-based objection. [The Masterpiece baker’s] objection was about to whom it was sold; a user-based objection,” which does not implicate the baker’s right to speak.

Vendor Nondiscrimination Laws vs. Consumer’s Right to Boycott 

Governments have the constitutional power and duty to regulate the qualities of products and services, and how they are sold by vendors, to protect the public and promote the public interest, including ensuring access by members of the public to the products and services without discrimination according to particular traits, which governments may identify differently.  Colorado has chosen to identify sexual orientation as a protected trait and businesses that take advantage of the many Colorado laws that protect and promote business operations are legitimately subject to nondiscrimination limits as well.  By contrast, citizens who spend money, rather than make it through dealing with the public, retain their individual rights to choose who to patronize and where to spend their money.  Five Justices of the Supreme Court have found Congress, at least, to lack the power to force individuals to purchase products to promote a public purpose.

In his role as vendor, the Masterpiece baker must comply with reasonable government regulations of his business operations, including nondiscrimination laws.  In his purchases as a private citizen, he may refuse to spend money in ways that he alone determines may violate his conscience, or for any other reason at all.

 

 

 

The Assembly Rules Subcommittee on Harassment, Discrimination, and Retaliation Prevention and Response met yesterday to discuss how the institution will address and change the Assembly – and Senate’s – policies to address and fix the pervasive culture of sexual harassment in the Building.

Earlier this week, Jon Fleischman gave a fairly comprehensive rundown of the allegations that have been dominating the news related to California’s Capitol. He also pointed out a procedural approach and four potential policy fixes. He called on Republicans to urge Governor Brown to call a Special Session to address this issue, and notes potential bills the Legislature could consider in that Special Session:

  • A bill to establish that a law enforcement agency (perhaps the California Highway Patrol) has jurisdiction over investigations of allegations of sexual harassment in the Capitol. The idea is to put someone in charge of such investigations who is not beholden to legislators.
  • The Melendez whistleblower protection bill that has been shoved into a legislative drawer for years.
  • A bill to make sure that the legislature is subject to the California Public Records Act, like every other part of state government.”

The Sacramento Bee reported yesterday that Assembly Member Kevin McCarty is floating that he may introduce legislation that would require lawmakers, not taxpayers – as has been the case in settlement payouts for sexual harassment settlements – to pay for their sexual harassment settlements.

“We could deduct their pay. If they’re a former legislator, we could go after them in the judicial process,” McCarty said. “Some people have suggested you don’t pay out at all. But that would mean some people who are harmed, harassed, have zero recourse.””

But perhaps the most important policy idea was raised in a question by Asm. Eloise Gomez Reyes. She asked Rules Committee staff about the number of complaints in the past three and half years registered against members of the Assembly. The response was that complaints were not tracked at allThis fact is stunning. Asm. Vince Fong followed up on her questions, asking, “Isn’t it a problem that we don’t track complaints?” Staff replied it was a valid point.

Among the arguments for tracking the number of complaints were: by tracking complaints, it helps set the tone that this conduct is unacceptable; the number of complaints can be used to identify trends and potentially get ahead of issues and address them before they become major issues.

Changing Rules Committee policy – if not changing the law to enshrine in statute – to ensure the number of complaints lodged against members of the Legislature and senior staff are tracked is critical and a very necessary first step.

There are other serious issues that were raised in hearing as well, such as: records of complaints and investigations are only held for six years – in the Assembly – even though members can be in office for twelve years; lack of confidence in the system’s ability to protect staffers who come forward with complaints; and lack of a level playing field for the complainant and the person the complaint is being lodged against.

There is also a lot from yesterday’s hearing that I’m leaving out. That is not to say that those other portions of the hearing are not important. Everything brought up in the hearing is incredibly important. However, I wanted to focus on the first steps the Assembly – and the Legislature more broadly – are taking and can take to make the necessary systemic changes to make the Building a safe work environment. Yesterday’s hearing is one of those first steps. Addressing the records issues – tracking complaints and retention of those records – is another critical first step. But these are just first steps on a long, long road to regaining the trust and confidence of the staffers who work in the Building and the voters who send elected officials to it.

 

 

 

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?

 

 

 

Congress’s Commerce Power

In some countries, the national government could devise a way to combat homelessness, fund it, and implement a single solution in the same way throughout the country.  Not so in the United States.  Despite the Court’s broad interpretation Congress’s commerce power, Congress does not have the power to tell states that they must adopt a particular solution to homelessness.

It can, however, use taxpayer money to encourage states to develop solutions.  That’s what Congress and the Department of Health and Human Services (DHHS) have done.  Congress gives money to manage the Medicaid program to the states.  DHHS granted California a waiver from Medicaid rules to implement its own solution, which is to use the federal money to award “Whole Person Care” grants to cities and other groups to coordinate the number of different types of care that vulnerable populations, such as the homelessness, need.

Sacramento received one of the grants.  But while cities, like Sacramento, have the power to create and coordinate the extensive outreach necessary to direct homeless people to medical and mental health care services, counties are the entities charged by the state with delivering those services, and counties are the ones that receive taxpayer funding to do so.  So, implementing a “Whole Person” homelessness solution requires a team of government entities, at different levels, working together to exercise their various powers granted in a constitution or delegated by a legislative body to get the job done. While a system of diffused power encourages new ideas and fresh approaches, it also increases the likelihood of complications, when entities charged with addressing different parts of a policy problem, like homelessness, find it difficult to collaborate.

Yesterday, the Sacramento Bee’s Editorial Board penned its opinion on the current situation in Sacramento. You can read it here.

Check out our In Briefs.