Technical amendments: Below the radar, but crucial

Lawmakers often alter bills as the measures move through committees and floor votes — it’s part of life in the Capitol. A legislator’s beloved bill introduced in February may have little resemblance to the measure approved (or defeated) in August.

But while the public’s attention typically focuses on the substantive amendments that target the core of the bills, the technical amendments also are important. The technical changes often need to be made to legislation to make sure that the bills are properly enacted into statutes.

According to the Legislative Counsel, the lawmakers’ nonpartisan legal adviser, an amendment is a proposal to change the text of a bill after it has been introduced.

Amendments must be submitted to the Legislative Counsel for drafting or approval.

The use of what are known as chaptering amendments, double-jointing language and contingent enactment language is often misunderstood in the legislative process. These generally are used when measures are in conflict.

When that happens, the Legislative Counsel sends the authors of the bills a “conflict notification,” which identifies the measures that appear to be in conflict with each other. There’s a conflict when bills or constitutional amendments “add, repeal, or amend and renumber the same section, article, chapter, division, tittle, or heading.”

It all sounds technical, and it is. But it’s also important.

You’ll be tested on this later.

Chaptering-Out Amendments
Chaptering-Out refers to the provisions of one chaptered bill amending the same code section(s) as another chaptered bill. The bill with the higher chapter number prevails over the lower chapter number bill. Chaptering-Out can be avoided with the adoption of “double jointing” amendments to a bill prior to passage by both houses of the Legislature and signature by the governor. “Chaptered” means a bill has been approved by lawmakers in both houses and signed by the governor, then officially logged by the secretary of state.

Double-Jointing Amendments
This gets a little tricky.

Double-Jointing requires technical amendments that will prevent the amended bill from “chaptering out” the provisions of another bill when both bills amend the same code section. The Legislative Counsel says the goal is to make sure “that the amended bill does not override the provisions of another bill, where both bills propose to amend the same section of law.”

Unlike contingent enactment (see below), double-jointing is not driven primarily by policy considerations. Rather, double-jointing seeks to solve the technical problem known as “chaptering out.”

When two or more bills amending the same code section are passed by the Legislature and signed by the governor, the changes made by the bill with the higher chapter number (that is, the bill signed last by the governor) prevails over the changes made by the bill with the lower chapter number.

This will occur unless the bill with the higher chapter number contains a provision to the contrary.

If a bill with the higher chapter number does not contain language dealing with this situation, its changes will supersede (or “chapter out”) the changes made to the same code section by the bill with the lower chapter number. Double-jointing amendments allow all of the changes to a code section proposed by two or more bills to take effect. The double-jointing language must occur in both measures in order to be effective.

Phew.

Contingent Enactment Amendments
Observers should also be aware of “contingent enactment language,” which is language that connects two bills so that one bill will not become operative unless the other bill also takes effect.

How is contingent enactment language distinguished from double-jointing language?

Contingent enactment language connects two bills, stating that one bill does not become operative unless another bill also takes effect — even if it has passed both houses and is signed by the governor.

Generally, contingent enactment language is used for policy reasons rather than to resolve technical issues. Contingency enactment language makes the policy goals contained in one bill dependent upon the policy goals contained in another bill.

On the other hand, double-jointing occurs when two bills amend the same code section but in different ways and the Legislature wants both bills to be enacted. In such a case, technical amendments are drafted which add provisions to the bill that would make all of the changes in a section of a code if each bill is chaptered.

Double-jointing prevents the problem of chaptering out.
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Ed’s Note: Chris Micheli is a principal at the Sacramento governmental relations firm of Aprea & Micheli. He is an adjunct professor in the Capital Lawyering Program at McGeorge School of Law.