The last night of the Legislature’s biennial session on Aug. 31 was, as usual, a hectic free-for-all.
Although full-time lawmakers had been in session for 21 months, dozens – and perhaps hundreds – of bills still needed final votes.
With lobbyists packing Capitol hallways, there were frantic efforts to rewrite some of their provisions or, in some cases, to draft entirely new bills.
Senate Bill 859 exemplifies what’s wrong with what happened that night – and with the Legislature’s penchant for concealing what it does from the public.
Ostensibly, SB 859 was a “trailer bill” connected to the 2016-17 budget that had been approved six weeks earlier.
However, it’s become common – and shoddy – practice for the Legislature to use such trailer bills to make important changes in public policy that have little or nothing to do with the budget, bypassing the usual legislative process.
And it’s also common for such trailer bills to be drafted via the equally shoddy “gut-and-amend” practice, in which the contents of an existing measure are stripped out and entirely new provisions inserted.
Finally, SB 859 and other sneaky vehicles – dubbed “mushroom bills” because they sprout in the dead of night – are often revealed just before they are brought up for votes.
Mostly, SB 859 contained provisions of a post-budget agreement between Gov. Jerry Brown and Democratic legislators on spending $900 million in proceeds of the state’s “cap-and-trade” auctions of carbon emission allowances.
Essentially, it was a pork barrel bill of appropriations for a wide variety of projects and programs to satisfy demands of various interest groups – many with only tenuous ties to carbon emissions, by the way.
Just before passage on the final night, however, someone inserted an extra paragraph unrelated to carbon emissions, declaring “a trustee of public trust lands shall have the right to bring any action related to its granted public trust lands, including an action to abate a public nuisance, as a representative of the beneficiaries.”
Only a very few people in the Capitol that night knew what that section meant, and the legislators who voted on it soon after its insertion were given just nine words in their staff-written analyses: “Clarifies the role of a trustee of public lands.”
It’s real effect was to overturn a federal judge’s ruling nine days earlier that three cities lacked legal standing to make Monsanto Co. liable for polychlorinated biphenyls (PCBs) in San Francisco Bay.
However, critics say it also inadvertently grants cities with jurisdiction over state-owned tidelands broad powers to sue for just about anything.
Whether that power should be enhanced is a fit topic for legislative consideration. But it should be done with a separate bill, committee hearings and the rest of the usual legislative process, not sneaked through in the final hours of a session.
Fortunately, voters can impose a partial remedy for the Legislature’s procedural malpractice.
Proposition 54 would require bills to be in final form 72 hours before voting, and SB 859 is a poster child for its approval.