Amendments: A long and winding road

In the Legislature, there are several types of amendments — amendment is a fancy word for “change” — that can be made to any number of measures, including bills, resolutions and constitutional amendments.

The lawmakers’ official lawyer, the Legislative Counsel, says an amendment is the alteration of a bill, motion, resolution, or clause by adding, changing, substituting, or omitting language.

In order to adopt an amendment to any measure, that amendment must be submitted to Legislative Counsel for drafting.

There are three ways to make amendments to measures — author’s amendments, committee amendments and floor amendments.

We’re getting into the weeds here, but in the Legislature, the devil is in the detail. And there’s a lot of detail.

Author’s Amendments
The author of a bill can amend his or her own bill. Typically, the author makes the request to the chair of the committee hearing the bill (or resolution or constitutional amendment). The chair can then recommend that the amendments submitted by the author be adopted, and that the measure be reprinted as amended and re-referred to that committee.

There are several instances where an author may make “author’s amendments” to his or her measure:

–Before a committee hearing. Amendments submitted by the author to the committee and submitted to the Senate or Assembly desks by the committee chair are allowed, in accordance with individual committee rules. Author’s amendments are permitted without the benefit of a committee hearing and recommendation.

–At a committee hearing or on the floor. Amendments in committee or on the floor that are supported by the author can be made to a measure.

Committee Amendments
There are “committee amendments,” which are amendments proposed by a committee or a committee member at a hearing.  Such amendments are adopted by roll call vote of the committee.  These changes may or may not be to the author’s liking.

Committee amendments to bills are considered on their second reading, and the amendments may be adopted by a majority vote of the members present and voting. Assembly and Senate bills amended on second reading by committee amendments are usually ordered reprinted and returned to the second reading file.

Committee amendments must be prepared or approved as to form by the Legislative Counsel. A specified number of copies of the committee amendments to measures are delivered to the Assembly chief clerk’s or Senate secretary’s desk.

Floor Amendments
A lawmaker  — or “member” as they are known in the Capitol — may move to amend a measure during its second or third reading, and that motion may be adopted by a majority vote of the members who are present and voting.

Amendments offered from the floor to a measure are not in order unless a copy of the proposed amendments has been placed upon the desks of the members on the floor.

A copy of a measure that has been amended only to add coauthors is not required to be placed upon the desks of the members. Amendments offered from the floor during a measure’s second or third reading must be approved by the Legislative Counsel. After that, a specified number of copies must be delivered to the Assembly chief clerk or Senate desk.

Substantive floor amendments during a measure’s second or third reading must be submitted to the Assembly or Senate desk by adjournment on the business day before the start of the session at which the amendments are to be considered.

After the amendments are submitted to the desk, an analysis is prepared by the committee of origin and a copy of that analysis is distributed to each member prior to the beginning of debate on adoption of the proposed amendments.

Any measure amended on the second or third reading file is then ordered reprinted and returned to the third reading file, and may not be acted on until the amended measure has been on the Daily File for a specified period (depending on Senate or Assembly rules).

This requirement does not apply to a bill that is amended to add or delete an urgency clause or to a bill that is amended to make statutory changes to implement the budget bill.

Under the Joint Rules, an amendment must relate to the same subject as the original bill, constitutional amendment, or resolution under consideration by the respective house. An amendment is not in order when all that would be done to the measure is the addition of a coauthor or coauthors, unless the house’s Rules Committee grants prior approval.

In the Assembly, the speaker may re-refer a bill to a committee for two reasons: amendments adopted on the Assembly floor include policy not previously heard in an Assembly committee, or a bill returned to the Assembly for concurrence in Senate amendments contains policy not previously heard in an Assembly committee.

Floor amendments to Assembly bills are handled according to the policy committee’s analysis of the floor amendments. If the floor amendments are marked “re-write” or “new bill,” then special rules apply. If the analysis is marked “re-write,” but the subject matter of the amendments is germane to the previous version of the bill, the measure is sent back to the Committee on Rules for consideration on re-referral.

If the Rules Committee re-refers the bill to a standing committee, the standing committee may (1) hold the bill, (2) return the bill as approved by the committee to the Senate Floor, or (3) re-refer the bill to the fiscal committee.  Committees may amend these bills as floor amendments only, and only during the time that amending on the Senate floor is permitted.

If the analysis is marked “new bill,” then the bill is withdrawn from the Senate floor and sent to the Rules Committee. The committee may either (1) hold the bill or (2) refer the bill to the appropriate standing committee, subject to all Senate Rules and Joint Rules applicable for hearing of bills.

Other Amendments
There are other amendments as well.

“Hostile amendments” can be made at either a committee hearing or on the floor.  Hostile amendments, those which the bill’s author opposes, are proposed by another member in committee or on the floor.

In addition, there are “gut and amend” amendments, which often capture the attention of the media. These are amendments to remove the current contents of a measure in their entirety and replace them with different provisions.

This last type of amendment does raise the issue of germaneness, which refers to whether a proposed amendment is relevant to the subject matter currently contained in the measure.

However, while Legislative Counsel may opine on the issue of germaneness, the final word comes from the presiding officer and, ultimately, is subject to an appeal by the membership of the house.

The bottom line is that a majority of the members of the Assembly or Senate determines whether amendments to a measure are germane or not.
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Ed’s Note: Chris Micheli is a lobbyist with the Sacramento governmental relations firm of Aprea & Micheli, Inc. He serves as an Adjunct Professor at McGeorge School of Law in its Capital Lawyering Program.