The Micheli Files: “Gut-and-Amend Bills” in the California Legislature

ANALYSIS – One of the controversial occurrences during the annual California Legislative Session is so-called “gut-and-amend” bills. According to the Office of Legislative Counsel, these measures are defined as “when amendments to a bill remove the current contents in their entirety and replace them with different provisions.”

The controversy lies in the second part of the process – replacing the bill’s contents with a subject which is entirely unrelated to the original contents of the bill. Such amendments raise the legislative issue of “germaneness,” which refers to whether a proposed amendment is relevant to the subject matter currently contained in the measure.

While the Office of Legislative Counsel may opine on the issue of germaneness, the determination of germaneness is decided by the Presiding Officer and, ultimately, subject to an appeal by the membership of the respective house.  As a result, a majority vote of the Members of the Assembly or the Senate will ultimately determine whether amendments to a measure are germane or not and, therefore, whether the gut-and-amend was proper or not.

In addition, the appropriateness of gut-and-amend bills can be raised in the context of Proposition 54, which requires 72 hours of waiting before the final version of a bill can be voted on. Because the ballot measure (Prop. 54) added the word “any” before amendments, it means the 72-hour rule applies to both substantive and technical amendments (e.g., double-jointing language).

While the proponents of Prop. 54 clearly intended to address the perceived problems with “gut-and-amend” measures, the language does raise the question whether they meant to apply the 72 hours’ notice requirement to purely technical amendments. Regardless of interpretation, Prop. 54 has to be taken into account at the end of the California Legislative Session when dealing with gut-and-amend bills.

Each house of the Legislature has rules related to determining whether amendments are germane. For example, under Assembly Rule 92, titled Amendment to Be Germane, an amendment to any bill, other than a bill stating legislative intent to make necessary statutory changes to implement the Budget Bill, whether reported by a committee or offered by an Assembly Member, is not in order when the amendment relates to a different subject than, is intended to accomplish a different purpose than, or requires a title essentially different than, the original bill. Note, again, that the full Assembly ultimately decides this question.

Despite all of these rules, the issue of germaneness is rarely raised in either house.

Under Senate Rule 23(e), there is a distinction drawn regarding amendments to rewrite a bill. The first inquiry is whether the amendment is germane to the previous version of the bill, but adds a new subject to the bill that is different from, but related to, the current contents of the bill. Subdivision (f) acknowledges new bills when an amendment creates a new bill if the amendment changes the subject of the bill to a new or different subject.

Senate Rule 38.5 requires every amendment proposed to a measure to be germane. In order to be germane, an amendment must relate to the same subject as the original bill, resolution, or other question under consideration. A point of order may be raised that the proposed amendment or an amendment now in the bill, resolution, or other question under consideration is not germane, so long as the question is within the control of the body.

In that case, Rule 38.5 provides the President pro Tempore must decide whether the point of order is well taken. In the absence of the President pro Tempore, the Vice Chair of the Committee on Rules decides whether the point of order is well taken. If, in the opinion of the President pro Tempore or the Vice Chair of the Committee on Rules, the point of order is well taken, then the question of germaneness is referred to the Committee on Rules for determination.

Thereafter, the Committee on Rules must make its determination by the following legislative day. If the point of order is raised and referral is made on the last legislative day preceding a joint recess, then the Committee on Rules makes its determination before adjourning for the recess. The matter remains on file until the determination is made.

Finally, if, upon consideration of the matter, the Committee on Rules determines that the amendment is not germane, then the bill, resolution, or other question is stricken from the Daily File and may not be acted upon during the remainder of the session, provided that the author of a bill, resolution, or other question must be given the opportunity to amend the bill, resolution, or other question to delete the portions that are not germane. If that occurs, then the bill, resolution, or other question may continue to be acted upon. If the Committee on Rules determines that the amendment is germane, the bill, resolution, or other question may be acted upon by the house.

Despite all of these rules, the issue of germaneness is rarely raised in either house. At this point, it is considered to simply be part of the legislative process in this state and so legislators do not challenge amendments that gut-and-amend a measure.