Charles Munger Jr. explains his legislative transparency initiative
California voters overwhelmingly approved Proposition 54 last month, commanding the Legislature to be less sneaky by requiring 72 hours of public exposure for measures before their final votes.
Those in and around the Capitol wondered whether Democratic legislative leaders would fully comply or try an end run. The issue erupted within minutes of the 2017-18 legislative session’s opening on Dec. 5.
Without prior notice, Assembly leaders unveiled new operational rules for the session and Republicans objected that springing them suddenly violated the spirit of Proposition 54, although technically, rules changes are exempt from its provisions.
More pertinently, the rules themselves, adopted on a party-line 55-25 vote, contain one potentially large loophole, to wit:
A bill is introduced in one house and in some form – often very rough form – is passed to the other house, where amendments are usually added before passage. If amended, the bill is returned to the “house of origin” for a third vote that sends it to the governor for signature or veto.
According to Assembly Chief Clerk E. Dotson Wilson, the new Assembly rules require a 72-hour hold when the final bill is passed in the second house, and again when it returns to the original house for approval of amendments.
The rules’ potential loophole is that they don’t require a 72-hour wait before a bill’s first floor vote in its first house by defining a bill’s “final form” – the words of Proposition 54 – as the version presented for a floor vote in the second house.
Assembly leaders say applying the 72-hour requirement to initial first house votes is not necessary since at that point a bill is not in final form and could be amended in the second house.
However, not all bills are amended. So under the procedural rules, it would be possible for leaders to write a bill in secret, zip it through the first house without 72 hours of exposure and then have it sent to the governor by the second house without being returned to the house of origin for a third vote.
Not to seem jaded, but history has proved that Capitol politicians will use any convenient device to operate stealthily.
Once, phony “conference committees” were used to write bills secretly and then pass them quickly, before the public knew what was being done. More recently, “gut and amend” has been used to sprout “mushroom bills” in the dark, most cynically “budget trailer bills” that have little or nothing to do with the budget.
Proposition 54’s 72-hour rule was aimed at blocking the latter tactic, and its chief sponsor, Stanford University physicist Charles Munger Jr., has hinted that he’ll sue if legislators enact laws without 72-hour notice in both houses.
It’s uncertain how courts would interpret Proposition 54, but one wonders whether legislators – and interest groups that sponsor bills – really want to risk having them invalidated.
They – and the public – would be better served were the Legislature to acknowledge that voters are tired of parliamentary tricks and provide 72-hour notice for all floor votes, even if it’s inconvenient.