Opponents of legislative transparency in voter-approved Proposition 54 all but claimed the sky would fall if sunlight was shed on the legislative process. It didn’t. Per California’s new transparency rules, Senate Bill 1, the $5.2 billion gas-tax increase, was in print, posted online and distributed to every legislator for review for 72 hours before it came to a vote in either house. The bill still passed.
While transparency didn’t prevent promises to some legislators of a billion dollars in new spending to secure votes for SB 1, those perks were not sneaked into the bill and passed within hours, a common practice before the passage of Prop. 54. Instead, the billion dollars in district spending will appear in separate legislation that will also be required to be in print and distributed for 72 hours before any legislator takes a vote.
No matter your opinion of the gas tax or related perks, Prop. 54’s transparency provisions, now enshrined in the California Constitution, worked as they should in the case of SB 1. But voters should not take a victory lap just yet. Despite adherence to transparency for SB 1, the Assembly and Senate have yet to codify in their operating rules the constitution’s new transparency provisions. Instead, they have created rules that represent a half-measure of what those provisions require, and of what California voters intended when they approved Prop. 54.
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Transparency provisions in the state Constitution now require the Legislature to distribute and post each bill online for at least 72 hours before the bill may be passed out of either house of the Legislature. The Assembly and Senate can amend a bill at any time, but then that bill must itself be distributed and posted online for 72 hours before any legislator may vote on it. If either house does not follow this requirement, that bill would not be constitutionally passed and would be ineligible to become a law.
In addition, the new transparency provisions allow “any person” to record a public meeting of the Legislature. And beginning in 2018, the Legislature itself must record all public meetings and post the recordings online within 24 hours.
Inexplicably, the Assembly and Senate, rather than placing these provisions in their rules, have created rules that could result in important legislation being tied up in court and invalidated.
For example, language in the Assembly Rules passed last December does not require 72 hours of notice prior to voting on Assembly bills that have not yet been approved by the Senate. And rules passed by the Senate only mention the Constitution’s 72-hour print and posting requirement in reference to suspending it in the event of an emergency, not in honoring it when there is none.
The proposed joint rules of the Assembly and Senate are no better. Senate Concurrent Resolutions 21 and 38 establish no understanding common to the Assembly and Senate about honoring the Constitution’s 72-hour notice provision for all bills. And SCR 38 would, on the Assembly or Senate floor, allow only selected members of the press, not “any person,” to record public proceedings.
Is failure to fully codify transparency in the legislative rules due to misunderstanding of the new provisions, or something else? Either way, legislative transparency is now required by the California Constitution, to which every legislator took an oath to bear “true faith and allegiance.”
These provisions must be fully added to legislative rules. To ignore them, or to implement only parts of them, could result in legislation critical to the people of California ending up in court. If it gets there, the Legislature will bear the responsibility.
Charles Munger Jr. is an atomic and particle physicist, and was instrumental in the drafting and passage of Proposition 54. He can be contacted at firstname.lastname@example.org. Sam Blakeslee, a former legislator and co-proponent of Proposition 54, is director of the Institute for Advanced Technology and Public Policy at Cal Poly, San Luis Obispo. He can be contacted at email@example.com.