Last-minute 'gut and amend' laws bypass scrutiny in California

lrosenhall@sacbee.comOctober 17, 2011 

It was after midnight on the last day of the legislative session last month when the state Senate took up a controversial bill concerning election laws for the very first time.

Most bills go through a months-long process of hearings, negotiations, amendments and votes. Not this one.

Senate Bill 202 was written about 24 hours earlier, when Democrat Loni Hancock of Berkeley deleted the language in a bill about filing fees on voter initiatives and replaced it with a highly political proposal to change the state's election laws in ways that will favor Democrats in 2012.

"The lack of process in this bill is inexcusable," Sen. Ted Lieu of Torrance told his colleagues that night. "We as Democrats should be ashamed at how this came to the Senate floor."

Hancock's bill was the most extreme example this year of the Legislature's penchant for writing new laws at the last minute – but it was by no means the only one.

The Legislature wrote 48 bills in the last three weeks of the regular session, long after the deadlines for most law-making procedures had passed. They did so by deleting the text of existing bills and replacing it with something new and often unrelated – a process known as "gut and amend."

Lawmakers sent 22 of those bills to the governor, who signed all but three of them.

That means 46 percent of gut-and-amend bills from the regular session cleared the Legislature, higher than the 35 percent rate for bills that went through the normal process. Gov. Jerry Brown vetoed gut-and-amends at about the same rate as he vetoed all regular session bills – roughly 14 percent.

Among those he signed was Hancock's bill, which flew through the Assembly on the last day of session.

It received a 13-minute hearing of the lower house's Elections Committee that was announced with less than two hours' notice. The full Assembly passed the bill that afternoon and sent it to the Senate, which took it up at 12:36 a.m.

"I'm going to vote yes on this bill, but I'm absolutely not happy about it," Lieu said before SB 202 cleared the Senate on a nearly party-line vote.

The governor said last week that he would "like to see things earlier in the process," but that he didn't view gut-and-amend bills differently from those that went through the regular process.

"As they say," Brown told reporters, "making sausage and legislation ain't pretty."

Public input blocked

Last-minute bills bypass much of the lawmaking process Americans learn about in civics class. They are widely criticized by good-government advocates, who say the hasty process omits public input.

"It's not transparent," said Bob Stern, president of the Center for Governmental Studies. "The public doesn't know what's going on, only the insiders do."

These were among the gut-and-amend bills the governor signed this month:

• Assembly Bill 853, which began as a bill about college tuition for veterans but became a companion measure to a bill banning removal of shark fins.

• Senate Bill 292, which changed from a bill concerning community college transfer students to a bill that will speed up the environmental review process for a new stadium in Los Angeles.

• Senate Bill 946, which started out as a bill about sanitation in restaurants and ended up as one requiring insurance companies to provide certain treatment for autistic children.

Some state legislatures do not allow bills to go through such radical changes, said Brenda Erickson, a research analyst at the National Conference of State Legislatures. Michigan, Mississippi, North Dakota, Texas, Arizona, Louisiana and Washington bar amendments that change the purpose of a bill, she said.

California lawmakers say the ability to overhaul bills at the last minute is important.

Politicians like the freedom to address new issues or revive a stalled idea, as Senate President Pro Tem Darrell Steinberg did with the bill on autism insurance coverage. After his original bill was held in an Assembly committee, he inserted its language into the gutted restaurant bill.

"The process is often imperfect," Steinberg said. But criticism of gut-and-amends creates a Catch-22 for elected officials, he said.

"If we had done nothing on CEQA reform, on regulatory reform, if I hadn't decided to revive my autism mandate bill at the end of the year, the criticism would be, 'Why didn't you get anything done?'"

Speed of process risky

Gut-and-amend bills are also used, however, to introduce politically contentious issues with little time for public scrutiny.

Hancock's SB 202, for example, was pushed by several labor unions nervous about two upcoming ballot measures. One would ask voters if unions should be barred from automatically deducting dues to spend on political campaigns from members' paychecks. The other would ask voters if the state should create a rainy-day fund, limiting money available for spending on public programs and employee salaries.

Both measures were supposed to appear on the June primary ballot, when Democratic turnout is expected to be low because President Obama isn't facing serious competition.

SB 202 delays a vote on the rainy-day fund until 2014 and moves initiatives, including the paycheck measure unions oppose, to the November ballot, when Democratic turnout will likely be higher.

Hancock said her bill expands participation in democracy by moving initiatives to a ballot that attracts more voters. As for bringing it up in the last 24 hours of the legislative session, Hancock said Republicans pushed for the rainy-day fund ballot measure the same way when crafting the state budget in 2010: "In the dead of night with no hearings."

The sudden end-of-session changes remind longtime Senate staff member Peter Detwiler of the Roman goddess Minerva, whose stained-glass image appears above the entrance to the Senate chambers. According to Roman mythology, Minerva never evolved from infancy to adulthood. She sprang fully-formed from her father's head.

"The legislative work in a democracy is deliberately slow," said Detwiler, now retired after 29 years working for the Senate. "We are vulnerable to policy mistakes and political embarrassment when we try to go too fast."

The Legislature has rules that are supposed to prevent last-minute changes, but lawmakers find ways to work around them. About 30 percent of the bills they rewrote in the last three weeks of session were amended after the Legislature's own deadline for making amendments.

Lawmakers are not subject to the same open meeting laws that slow down action by local governments and state agencies. Local boards must give the public at least three days' notice before making any decisions, while state agencies have to post their agendas 10 days in advance.

A government reform group called California Forward is discussing changes that would require the current version of a bill to be in print for three days before the Legislature could act on it.

"A three-day-in-print rule could bring a lot of transparency and sunshine to a process that otherwise becomes a tool of mischief," said Executive Director Jim Mayer.

But enacting such changes legislatively is unlikely, he said, because it's "difficult for the Legislature to change the rules that apply to itself."

"So if there are going to be any significant changes to how the Legislature does its business … chances are it's going to take a citizens initiative," Mayer said.

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