Californians Aware and the seven other public interest organizations that first endorsed the new legislative transparency law in the initiative drive to get it on the statewide ballot have now reached out to lawmakers offering both assistance and advice in getting the voter-adopted California Legislature Transparency Act embodied in the procedural rules of the Senate and Assembly.
The Act requires the legislature to abandon its practice of last minute gut-and-amend tactics, instead posting all bills on the Internet for 72 hours before a final vote in either house. And even earlier in the process, the Act requires the Legislature to audiovisually record every committee hearing or floor session, post the recordings on the Internet within 24 hours, and store downloadable copies of the footage on a publicly-accessible database for at least 20 years. Finally, those present to observe such proceedings can record them on their own devices and republish the product as they please.
Addressed to Assembly Speaker Anthony Rendon, Senate President Pro Tempore Kevin de León and the members of both houses, the letter was sent by the chief executives of California Common Cause, California Forward, the California Chamber of Commerce, the California Taxpayers Association, Californians Aware, the California Public Interest Research Group, the League of Women Voters of California, and the National Federation of Independent Business/California.
The letter states its purpose thus:
Passage of Prop 54, the California Legislature Transparency Act, provides California with an opportunity to lead the nation in its commitment to transparency and open government. It is in this spirit that we, the core supporters of Proposition 54, are reaching out to you about its implementation. Because we are aware that the Legislative Rules are adopted early in the session, we would like to offer our assistance as you work to implement Prop 54’s provisions. We are willing to help in any way desired by the Legislature to ensure the rules conform with the Act, including assistance with any relevant legal analysis and compilation of materials and representations to the public made throughout the campaign. These could be important to the courts should they be called upon to resolve any differences in interpretation.
The letter lists four issues of particular concern:
- The requirement that a bill must be “in its final form, for at least 72 hours before the vote” applies to any house that is voting on a bill; not just to the final house to vote on a bill before it leaves the jurisdiction of the Legislature. This is the only logical and internally consistent interpretation based on the language, ballot materials, and purpose of Section 8 of Article IV of the Constitution. However, as long as this requirement is observed, there is the following flexibility in the requirement’s application: If the bill has already been published for 72 hours and distributed to all members of both houses, once the bill has been passed off the floor of one house, a new 72-hour review period is needed for the second house only if subsequent amendments are made to the bill. Finally, given the importance of this requirement, we urge the adoption of a protocol that accurately and unambiguously establishes the start time for the 72-hour review period.
- The provision that “the bill with any amendments has been printed, distributed to members, and published on the Internet, in its final form, for at least 72 hours” precludes the ability to present one version of the bill to the public on the Internet and a somewhat different version distributed to members. Similarly, it would not be permissible to publish a bill on the Internet supposedly “in its final form” that included blanks to be filled in at the time of the vote. Adding content to a blank would constitute an amendment, which must be available to the members of the Legislature and to the public for at least 72 hours.
- Being “published on the Internet, in its final form, for at least 72 hours” means that the bill must be posted on the Internet in its final form for public review for at least 72 full and complete hours, prior to the vote.
- The new public right to record a legislative proceeding, which “includes the right of any person to record by audio or video means any and all parts of the proceedings,” extends to legislators, staff, press (accredited or unaccredited), and any member of the public whether or not that person is a citizen or a legal resident. This provision precludes the ability of a chair to declare a portion of a public proceeding to be in some sort of “executive session” as a means to prevent a member of the public from exercising his or her right to attend and record the proceeding. Withholding of these rights is allowed only in the event of a closed session, as defined under the Constitution in Article IV, section 7(c). Furthermore, rules to regulate the right to record a public proceeding must be “reasonable” and are limited to the “placement and use of the equipment for broadcasting the proceedings for the sole purpose of minimizing disruptions of the proceedings.” This right cannot be abridged based on the subject of the public proceeding, the location of the public proceeding, or the identity of the person seeking to exercise the right.
These concerns for interpretation are not uniquely on the minds of the signatory organizations. The veteran Sacramento Bee political columnist Dan Walters noted Sunday that the lawmakers
must decide whether to fully honor the demonstrated desire of California voters for more transparency, or conjure up ways to obey Proposition 54 only in the most technical fashion while evading its obvious intent and conducting business as usual.
They could possibly adopt the latter attitude. Like all laws, Proposition 54 contains some potential ambiguity, such as whether it applies to any floor vote on a bill in either house, or just the final votes, which often occur in the final hours of the session, or whether “technical amendments” are exempt from the 72-hour requirement.
Were the Legislature to take a loose view of the measure, it might exempt “technical amendments,” such as correcting a misspelled word or misplaced comma, but if that passes legal muster, then we probably would see a steadily widening definition of the term – much as the “budget trailer bill” loophole has been exploited.
It is, in other words, a test of politicians’ respect for their voters.