Controversial legislative technique faces scrutiny over rushed proceedings

by Brian Leubitz

Gut and amend has its purposes.

I say that because there are a few major pieces of legislation, that were heavily discussed and fully vetted that still required gut and amend. Most notably, Mark Leno’s marriage equality bill in 2005, which was ultimately vetoed by Schwarzenegger.

Some issues should be given the second crack that gut and amend offers. But a little background.  “Gut and amend” basically means that a legislator will take a bill that was passed out of one house, strip its language, and replace it with entirely different language.  It ultimately has to get a confirming vote back in the first house, so every legislator votes on the new language.

The issue is that frequently gut and amend bills will come in the context of the last few days of a legislative session, where it is difficult if not impossible to deliver the proper scrutiny on the new text.  And thus, we get stories like this:

A few hours earlier, using an obscure parliamentary procedure, the senator had carved the contents out of a bill about local gas taxes and “amended” it into a proposal to warn women about breast cancer risks. It was now speeding through the statehouse so fast, and with so little scrutiny, that Simitian would later be on the defensive about one significant effect: a possible multimillion-dollar windfall for a medical business in his district.

Although most bills take months to wend their way through the Legislature, Simitian’s midnight measure was no anomaly. Proposals routinely emerge from nowhere in the waning hours of a lawmaking year and ride a fast track to the governor’s desk, without normal vetting and with standard rules waived. In the chaos, special interests can manipulate state law, sometimes so subtly that they elude detection.

The senator’s bill was one of many that bypassed the usual reviews this year as they flew through lawmakers’ hands at the eleventh hour. They included an exemption from environmental rules for a Los Angeles stadium developer, which Brown signed Tuesday, and a gift to unions that would permit child-care workers to organize. The governor has until Oct. 9 to act on the labor bill, Simitian’s proposal and hundreds of other potential laws. (LA Times)

Now, I’m not sure it’s time to point the corruption arrow on Joe Simitian on this, but you can see where it comes from.  Given the haste most gut and amend bills get through the Legislature, transparency is far from the first goal.  The bill in question isn’t necessarily a bad one, but perhaps something that could have waited for the next legislative session.

The problem with gut and amend isn’t the process itself, it is the extent to which it is used. Legislators need to consider whether the bill they are pushing can wait to proceed through the normal process to allow a more transparent process. If the answer is no, well, hopefully it is no because it is critical to the state, and not because those pushing the bill favor the lack of transparency.

UPDATE: I want to just emphasize one point. I think it is unfortunate that this breast cancer prevention bill got singled out for a discussion of gut and amend.  Like Mark Leno’s marriage equality bill back in 2005, it has been through the full process of hearings, and people on both sides of the issue have gotten a chance to present their case.  Ultimately that isn’t true for some gut and amend bills, and it probably would have been helpful for the Times to point to one of those bills as the poster child.  

This bill ends up getting lost in the forest, but I’m confident that Sen. Simitian has the best of intentions for breast cancer prevention.  And, given the attention that the bill just got from the Times, it makes it more difficult for the Governor to sign it now. That is ultimately unfortunate, as the bill deserves a fair hearing based entirely on the merits of early cancer detection.  I, however, am optimistic that Gov. Brown considers policy before politics on his legislative decisions.  Good legislation still makes good law, even if it came through an ugly process.

(An interesting back-room story. – promoted by Brian Leubitz)

This article written by:  Former Assembly Member, Hannah Beth Jackson of Speak Out California

This is the truly crazy-making time of the legislative year, when hundreds of bills line up on the floor like airplanes on a crowded runway. And productivity isn't measured by the quality of the bills being considered but rather by the number that are disposed of on the floor each day. With over 700 bills waiting for take-off or otherwise, it's a madhouse. Several bills have already been or will be delayed, postponed or canceled while most of those lined up will take off for the Governor's desk where their fate will be decided within thirty days of their final vote. An action alert is up, here. But read on for the details.

It is chaos, exhausting and usually a productive time. But this is also the time of year when egos and hard-feelings from past slights, disrespect or other machinations force otherwise important measures to languish and die, often even before hitting the runway.

Such is the fate of Senator Joe Simitian's bill, SB 412 which would required the Liquified Natural Gas supporters to demonstrate an actual need for the product before any LNG terminals could be built in California. This seems like a no-brainer in that these plants are enormously expensive to build and often present serious environmental concerns. It would only make sense that before California allow any to be constructed under those conditions that we prove they are actually necessary. With that in mind, the measure should have made it to the floor—but was held up in the Assembly Appropriations Committee, along with several other important measures that had been developed and passed not only through their “house of origin” (the Senate) but had made it beyond all the Assembly committees to find a hoped-for temporary resting place in the Assembly before being released for floor vote in that house. In SImitian's case, he had no such luck. Was it the nature of the bill and lots of opposition? Nope. Not in this case.

It was more a victim of the all-too-common tension between the “upper” and “lower” houses of the legislature. Considered by many to be the genius of our Founding Fathers and their creation of the bicameral system of government where bills must pass through two, separate legislative groups-the Senate and the Assembly (similar to Congress where the Senate and the House of Representatives often do battle), it often translates down into petty or ego-driven disputes. In this case, the holding of Simitian's bill is more a battle of power and ego where the upper and lower chambers are feeling slighted by each other. When that happens, good ideas and hard-fought bills are often the victims of political infighting. Such is the case with SB 412–and many other measures now neglected on the Appropriations Committee floors of each house.

The good news is that there is still time to resurrect SB 412 and that's just what we here at Speak Out California are hoping will happen. On Tuesday, September 4th, we sent out an action alert to our subscribers asking them to contact the Speaker of the Assembly, Fabian Nunez, and urge him to release this bill from the Appropriations Committee so that it can be heard. While often bills can wait until next year, there is a time constraint on this measure that requires its implementation this year. Why?

In essence this bill does two things: It requires the state to do a LNG Needs Assessment as part of its Integrated Energy Policy Report before approving placement of an LNG terminal in California. If we don't need it, why force it on our communities?

It also clarifies that the California Environmental Quality Act (CEQA) requires strong alternatives technology analysis so that if an LNG terminal is approved for California, it will be the safest design with the fewest impacts.

With enormous cost and profit possiblities, there are several companies moving forward full-throttle to become California's LNG supplier. The longer we delay in requiring these standards, the less likely we will be able to justify imposing them after millions and millions of dollars have been spent developing plans, permits, etc. that the process requires. Unless we pass this legislation into law this year, it will be too late to impose these important criteria on the companies developing their proposals as we speak.

For more information on this important measure, and to send a request to the Speaker, check out our recent action alert:
http://ga4.org/campaign/ActNowforCaliforniasEnergy Future

Of course, there are many measures that suffered a similar fate and many more that are on the floor of both houses during this last, frenetic week of activity. With 700 bills to consider, there will be days with votes on 100 bills or more. Some move within seconds and the most difficult take up to hours, especially in the Assembly where often all 80 members feel compelled to speak. It is definitely the most interesting time of the legislative year and often the most chaotic. Remember it was at this point in 1996 when the ill-fated electricity de-regulation bill took off, only to crash and burn on the watch of a totally new and unsuspecting legislature years down the road. We  can only hope that this year the legislature will escape that fate. That answer, though, may not be known for some time.

For now, we can only keep our fingers crossed and take heed of the Hypocratic oath  to “do no harm”. As in each and every legislative session, we shall watch and see.

I wrote this for today’s Beyond Chron, San Francisco’s Alternative Online Daily.

Last week, housing advocates couldn’t muster the 21 votes needed to pass SB 464, which would curb speculator evictions under the Ellis Act by limiting its scope to landlords who owned the property for at least 5 years.  Not even reducing it to three years was enough to overcome opposition from the real estate industry.  After Elaine Alquist of San Jose betrayed tenants by flipping her initial support, and Jack Scott of Pasadena said he would only support it if was whittled down to one year, it became clear that SB 464 wasn’t going to pass – so sponsor Sheila Kuehl delayed the vote until January.  This would never have happened in a State Senate run by David Roberti or John Burton, but current Senate President Don Perata never made Ellis Act reform a “leadership” issue.  And although she worked hard in the final days, State Senator Carole Migden’s efforts were too little, too late.  But advocates did secure the support of a swing vote, Leland Yee, and their efforts with Yee provide a roadmap for passing SB 464 next year.

It’s actually incredible that SB 464 got as far as it did – eighteen “yes” votes in the State Senate, which is the more conservative body in the state legislature.  Landlord and realtor lobbyists outnumber tenant lobbyists in Sacramento by a 12-1 margin, and they have shown a ruthless willingness to oppose even the most basic and incremental reforms to the Ellis Act.  While Democrats control both chambers, most of the moderate legislators will not support a bill that will arise the wrath of the realtors in their districts, especially if Governor Schwarzenegger – who owns rental property in Santa Monica – will veto it.

Housing advocates have generally prevailed in Sacramento when they had at least one of two things: (1) a strong tenant movement that had a grass-roots presence in pivotal districts, or (2) legislative leadership who was willing to take heat from the realtors.  The reason it took 17 years for landlords to pass Costa-Hawkins is simple – David Roberti of West Hollywood was President of the State Senate, and he would always arrange to have it killed in committee.  When San Francisco’s John Burton was Senate President from 1998 to 2004, tenants won many victories at Ellis Act reform like (a) a one-year notice for elderly or disabled tenants, and (b) exempting residential hotels (SRO’s) that provide housing for formerly homeless people.

But the leadership was silent about SB 464, leaving Sheila Kuehl and other supporters hanging dry to corral votes while the realtors ruthlessly applied pressure.  While State Senate President Don Perata represents Berkeley and Oakland (two progressive cities whose tenants have struggled with the Ellis Act), he was never a vocal supporter – despite wishful thinking to the contrary.  Perata told supporters he would vote for the bill when it came up, but he never made it a “leadership” issue and did not put pressure on Senate Democrats to get it passed.

It’s somewhat expected that a Democrat from the Central Valley would oppose SB 464.  But it’s inexcusable that Elaine Alquist of San Jose would cave in after the realtors, who were in Sacramento last week for their convention, confronted her about it.  Nor should Jack Scott of Pasadena have chickened out, or Joe Simitian (whose district includes East Palo Alto) come out against it.

The plain fact is that if Don Perata had made it a legislative priority, he could have brought these wavering Senators in line.

But it is also a defeat for Carole Migden, who is in a tough re-election fight for her San Francisco seat.  Migden was always a solid supporter of SB 464, but she didn’t work to get it passed until she had to shore up her progressive credentials.  Last week, Migden devoted her time and energy lobbying Senators to get it passed, while promising constituents that she would fight hard to deliver.  “It’s terribly important to send folks with the heft and continuity to bring things home,” said Migden in a candidates’ debate with her challenger, Mark Leno.  Now her effectiveness in Sacramento is called into question.

Ironically, Don Perata could have used SB 464 to help Carole Migden’s re-election chances.  When Mark Leno formally declared in March that he would challenge the incumbent Senator, Perata told the Chronicle’s Matier & Ross that by taking on Migden, Leno was “campaigning against the good work of all 25 Senate Democrats. To get to her, Mark must come over us.”  Instead, Perata showed that his commitment to Migden’s re-election was pure rhetoric, as he denied her the opportunity to deliver for her San Francisco constituents.

Politics aside, SB 464 was probably not going to pass without a systematic grass-roots effort to put pressure on the wavering legislators.  And that takes time and energy to organize a coalition that is both strategic and effective.  Housing and labor activists in San Jose could have gotten Elaine Alquist to switch her vote, and there are many tenants who live in Jack Scott’s Pasadena district.  A more organized effort in San Mateo County could have made Joe Simitian think twice, and serious noise from the East Bay might have placed the issue on Don Perata’s radar.

Nevertheless, housing advocates were successful in getting one moderate Senator to support Ellis Act Reform – Leland Yee of San Francisco.  To do that, they rounded up more than just the usual suspects.  The local Democratic County Central Committee passed a resolution urging the bill’s passage, and long-time supporters of Yee wrote to request his support.  After a weekend meeting with a diverse group of labor leaders, Asian-American activists and environmentalists, Yee told Sheila Kuehl the following Monday that he would vote “yes” on SB 464.

“Tenants don’t have an automatic 21 votes in the State Senate,” said Randy Shaw, executive director of the Tenderloin Housing Clinic and publisher of Beyond Chron.  “If we’re going to get Alquist and Scott’s vote in January, we’re going to have to put grassroots pressure in their districts to do the right thing.” 

And if Yee is any example, such work requires not just housing activists, but also progressive allies to let the Senator know that a wrong vote could carry consequences beyond just one constituency.  Housing advocates will have another chance to pass Ellis Act Reform, and in order to previal, the work will have to start now.

EDITOR’S NOTE: As a private citizen, Paul Hogarth has endorsed Mark Leno for State Senate but plays no advisory role in the campaign.  When he lived in Berkeley, he also campaigned for Don Perata’s opponent, Dion Aroner, in the 1998 special election.  Send feedback to [email protected]