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.