Class convened: A primer on the role of the California Legislature

The state Capitol, Sacramento. (Photo: AMadScientist, via Wikimedia)

While the primary focus of the California Legislature is deliberation and lawmaking on public policy issues large and small, it has other, important roles as well. The Legislature provides checks and balances to its co-equal judicial and executive branches of government and has significant investigatory powers. The Legislature also establishes societal priorities through adopting the state budget. The purpose of this article is to provide a brief overview of the Legislature, including its powers and the lawmaking process.

The California Constitution establishes the Legislature in Article IV, Sections 1-28 and sets the framework for its lawmaking authority. While the federal government, under the Supremacy Clause in Article VI of the United States Constitution, can preempt the Legislature’s authority in important ways, the scope of policy making by the California Legislature is very broad.

The Assembly membership was typically younger and faster-paced, while the Senate membership was older and slower-paced.

The Legislature has two houses (i.e., it is “bicameral”). The Assembly has 80 members while the Senate has 40 members. Each Assembly district is up for election every two years, while only one-half of the Senators stand for election every two years. In theory, the Assembly is the larger, more raucous body more likely to reflect the passions of smaller groups of voters, while the Senate is the smaller, more collegial body which is more likely to resist populist, emotional appeals. Legislators must be at least 18 years of age and a U.S. citizen in order to serve in either house.

Unlike Members of Congress, California legislators have term limits. Under Proposition 28, passed by the voters in June 2012, legislators may serve a maximum of twelve years in the Legislature. Someone could serve six, two-year terms in the Assembly, or three, four-year terms in the Senate, or some combination of terms in both houses. This system replaced a more chaotic term limits system of six years in the Assembly and eight years in the Senate, which resulted in Assembly members constantly seeking to “jump” from the Assembly to the Senate in what fairly can be described as a non-stop series of elections and musical chairs.

For most of California’s history, there were no term limits. A legislator would typically start in the Assembly and then “graduate” to the Senate when the opportunity arose. So, the Assembly membership was typically younger and faster-paced, while the Senate membership was older and slower-paced. However, now that someone gets to serve a maximum of twelve years no matter the house, it is more common for legislators to serve in a single house without so many “jumps” from the Assembly to the Senate.

With Assembly members content to stay in the Assembly for the entire twelve years, many younger candidates wishing to serve in public office have decided to run directly for the Senate – which will over time reduce the typical age and experience disparities between the two houses.

There are statutory initiatives and constitutional initiatives. The other, more common, path is the legislative process, designed to encourage deliberation.

Whatever the system, the Legislature produces a high volume of work. A sense of the amount of legislation adopted by the California Legislature can be gained by noting there are 29 codes (e.g., Health & Safety Code, Government Code, etc.) which contain about 150,000 statutes, according to the Legislative Counsel’s Office.

The California Legislature interacts with the federal government in various ways. State legislatures ratify amendments to the U.S. Constitution proposed by Congress. Congress may not require a state to enact and enforce a federal regulatory program, but Congress may encourage the states to cooperate by attaching conditions to the receipt of federal funds, such as requiring states to make 21 the legal age for consumption of alcohol in exchange for receiving federal highway funding.

There are essentially two paths to lawmaking in California. The initiative is a power reserved to members of the public to propose statutes and amendments to the California Constitution. This requires submission of the measure to the Attorney General for title and summary, collection and certification of signatures, placement on the ballot, and ultimately passage by the statewide electorate. There are statutory initiatives and constitutional initiatives. The other, more common, path is the legislative process, designed to encourage deliberation.

The Legislative Process
The process of the Legislature passing a bill which is then signed into law by the Governor is complex and full of subtlety. A piece of legislation typically originates with a “sponsor,” when an individual or group suggests legislation and either a Senator or Assembly Member agrees to “author” the bill.

A bill proposal, whether merely a preliminary idea or a fully-developed legal proposal, is submitted to the Legislature’s “in-house law firm,” the Legislative Counsel, for drafting and proper formatting. Once the Legislative Counsel finalizes the precise bill language in consultation with the author and, sometimes, the sponsor, the bill is formally introduced, printed, “read” publicly for the first time, and held up for public inspection without vote for 30 days.

Following a bill’s introduction, the Rules Committee assigns the bill to one or more “policy” committees which specialize in the particular area of the law covered by the bill. Because legislators cannot be experts in every area of the law, they serve on a few policy committees and are expected to gain enough detailed knowledge in those areas that the other legislators can rely upon their informed judgment. A bill may also be assigned to a “fiscal” committee if the bill has a fiscal impact on the State or requires an expenditure of state funds.

When a bill is approved in identical form by both houses, the bill goes to the Governor for final action.

Once a bill is referred to a particular committee, the committee completely controls the bill. A committee consultant researches the legal and policy issues presented by the bill and then drafts a written analysis of the bill for the legislators serving on that committee. This committee analysis will explain current law, the author’s arguments for why the current law is deficient, how the author believes the bill will improve current law, and the positions of groups which support and oppose the bill. The bill is then set for a public hearing.

At a bill hearing, the author presents his or her measure, followed by witnesses speaking for and against the bill, and then the author makes closing remarks. Thereafter, Committee actions can include:

• Amend the bill, either at the author’s or committee’s discretion.
• Vote on the Bill with a recommendation:
– To pass the bill on to the next step without amendment (“Do pass”);
– To pass the bill on to the next step with amendment (“Do pass as amended”);
– To reject the bill (“Fail passage,” a.k.a., “kill”); or
– Send the bill to interim study (if in the first year of session).
• Hold the bill in committee with no specific action.
• Report action as a recommendation to the Floor of either the Senate or Assembly.

After passage from the policy committee, as well as the fiscal committee if necessary, the Floor process for legislation includes:

• Second Reading — Bills passed by committees are read a second time on the
floor in the house of origin and assigned to third reading for final consideration.
• Third Reading — After the bill is read a third time, it is explained by the author to the entire house, discussed by the full house membership, and voted on by all the members of the house.

If the bill is approved in its house of origin, then the bill is transmitted to the second house. If the bill is defeated, the Member may seek reconsideration and another vote. Most bills require a majority vote in both houses (21 votes in the Senate and 41 votes in the Assembly). However, there are some measures that require a 2/3 majority vote (27 votes in the Senate and 54 votes in the Assembly), such as those with an urgency clause, bond acts, some appropriations bills, constitutional amendments, and bills that amend certain initiatives (e.g., Political Reform Act, Prop. 103).

If a measure is approved on the floor, then the bill goes to the other house and the process repeats itself. When a bill is approved in identical form by both houses, the bill goes to the Governor for final action.

The Governor’s Role
The Governor generally has 12 days to act on a measure and can either sign the bill, veto the bill, or allow the bill to become law without his or her signature. This deadline is extended to 30 days at the end of session to consider the hundreds of bills approved by the two houses in the last few weeks of the legislative session. Thereafter, the Secretary of State gives a chapter number to the bill and it becomes law on January 1 of the following year, although urgency and budget bills take effect immediately, and some measures have a delayed effective date specified in the bill.

California governors have been active in exercising their veto authority over the years. For example, most governors have vetoed between 10% and 35% of the legislation sent to their desks. Democrat Gray Davis annually vetoed between 15% and 24% of the bills sent to him by a Democrat-controlled Legislature, while Republican Arnold Schwarzenegger annually vetoed 22% to 35% of the bills.

Other Powers of the Legislature
Other important powers of the California Legislature include investigation, oversight and confirmation of certain appointees. Committees of the Legislature frequently hold hearings to investigate the implementation of statutes, gather information and review the performance of executive branch agencies. The Legislature and its committees have subpoena power and can utilize support entities such as the Auditor General to conduct investigations on a wide variety of subjects in any branch of state or local government.

Appointments by the Governor require confirmation by a majority vote or a two-thirds vote of the Senate. Finally, the California Legislature has the power to impeach the Governor and other public officials (constitutional officers elected on a statewide basis, as well as judges of state courts are subject to impeachment for misconduct in office).

Legislators’ Ethical Rules
Legislators are also regulated in their official conduct. For example, they may not accept honoraria, meaning they may not accept any payment for giving speeches, making appearances, or writing articles. They are bound by conflict of interest laws such that legislators may not introduce or vote upon non-general legislation or make, participate in making, or use their official position to influence specific state governmental decisions in which they know or have reason to know that they have a financial interest in the decision.

In addition, they must file annually a Statement of Economic Interests (Form 700) when assuming or leaving office and annually when in office. Legislators are also bound by “revolving door” restrictions which generally prohibit them from lobbying for compensation the Legislature or any committee, subcommittee, member, officer, or employee of the Legislature on behalf of any other person for a period of one year after leaving office.

Other Legislative Branch Offices
Also included in the legislative branch are several support agencies and staff that assist the Legislature with its functions. The Legislative Counsel’s Office serves as legal counsel to the Legislature and its members, primarily drafting legislative measures and providing legal opinions on various matters. Legislation cannot be introduced nor bill amendments adopted unless they have been approved by the Legislative Counsel as being in proper form.

The Legislative Analyst’s Office (LAO) serves as the Legislature’s primary source of nonpartisan budget and fiscal information and also advises on selected policy matters, primarily focused on analyzing the Governor’s annual proposed budget. The Bureau of State Audits conducts independent financial and performance audits as directed by statute or by the Joint Legislative Audit Committee.

State Agencies
California’s roughly 200 state agencies, departments, boards, and commissions implement these statutes passed by the Legislature through their interpretation, implementation and enforcement. These agencies and departments generally have rulemaking authority which allows them to adopt regulations to implement the statutes they are charged with administering. The rulemaking process is governing by the California Administrative Procedure Act. State agencies have adopted enough regulations to create 28 titles of the California Code of Regulations.

The Role of Lobbyists
In addition to legislators’ personal staff and the professionals who staff legislative committees, lobbyists play a role in the legislative process. A core value of American society is the constitutional right to petition the government for redress of grievances and to speak freely and fully about significant political issues. Lobbyists are regulated by the Political Reform Act of 1974 and the Fair Political Practices Commission (“FPPC”).

A lobbyist is generally defined as an individual who receives $2000 or more in economic consideration in a calendar month or whose principal duty as an employee is to communicate directly with legislative or state agency officials to influence specific legislative or administrative action on behalf of his or her employer or client.

Lobbyists provide information and services in a variety of areas, including:

• Effects of policies on an employer or client;
• Public relations;
• Testimony at hearings; and,
• Communication with legislators and legislative staff.

Lobbyists must register with the FPPC within 10 days of becoming a lobbyist and must renew their registration between November and December of each even-numbered year. In addition, they must report their lobbying activities and payments on a quarterly basis identifying their clients, fees and bills worked on in the prior quarter. Lobbyists are prohibited from making gifts totaling more than $10 in a calendar month to a state legislative official, including legislative employees or any official or employee of a state administrative agency.

Ed’s Note: Chris Micheli is an attorney and registered lobbyist with the government relations firm of Aprea & Micheli, Inc. Rex Frazier serves as the President of the Personal Insurance Federation in Sacramento. They are Adjunct Professors at McGeorge School of Law in Sacramento. The authors thank Diane Boyer-Vine, the Legislative Counsel, for her assistance in this article.

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