Lawyers’ view: Comparing Sacramento and D.C.

In the Capital Lawyering Program at McGeorge School of Law, we frequently ask students to compare and contrast the predominant lawmaking processes with which they will be working as a professional. We do this not so much as an academic exercise, but rather because we have found it helps sharpen their analytical, critical thinking and problem-solving skills. Students are better able to assess the political feasibility of proposals, determine the best political arena in which to proceed with a specific proposal, determine lobbying strategies based upon the particular political arena, and assess possible improvements to the various lawmaking processes.

California state government does not operate in a vacuum. Federal laws, programs and funding decisions are implemented by the state and have a huge effect on the state and its local communities. In addition, the state does not have exclusive control of the policy-making agenda. The federal government and California’s local governments are constantly considering and adopting policies that are of concern to those working with—or in connection with—state government.

In both Congress and the California Legislature, the political parties and the party leaders dictate many aspects of the legislative process, as well as the ultimate outcome of legislation.

In addition, it is frequently the case that the solution for a problem may be pursued in multiple political arenas, rather than just the state legislature. Consequently, a well prepared professional must also be able to work in other policy-making venues—particularly those that exist at the federal level.

In this article we compare and contrast a few of the key aspects of the lawmaking processes of Congress and the California Legislature. In so doing, we will also attempt to illustrate how this knowledge helps build the previously described skills and abilities.

When looking at differences and similarities in the lawmaking process of the California Legislature and Congress, one should first understand the extent to which these differences and similarities are driven by Constitutional requirements, statutory requirements or simply rules adopted by the legislative bodies themselves. Interestingly, the most impactful similarities and differences in the lawmaking processes of Congress and the California Legislature derive not from constitutional provision or statute, but rather from rules and procedures adopted by the respective legislative bodies.

Probably the most impactful similarity in process has to do with the role and power of political parties. In both Congress and the California Legislature, the political parties and the party leaders dictate many aspects of the legislative process, as well as the ultimate outcome of legislation. This is so because the political party in the majority of each chamber controls the leadership, the committees and the legislative agenda of that chamber.

For instance, in the current Congress, Republicans are in the majority in both the Senate and House of Representatives. This means that the Republicans (majority party), control the election of the various leaders of the Senate (such as the President Pro Tem and the Majority Leader), and the House of Representatives (such as the Speaker).

Neither the U.S. Constitution, the California Constitution, federal statute, nor California statute requires that each introduced bill is entitled to a hearing and a vote.

Also, the Republicans comprise a majority of the members of all the various committees and subcommittees, and also control the appointment of the chairs of all these various committees and subcommittees. Thus, Republicans largely control the legislative agenda of Congress.

In the current California Legislature, Democrats control the majority in both the Senate and Assembly. Consequently, Democrats control the leadership positions of those bodies (such as the Speaker of the Assembly and the President Pro Tem of the Senate), the majority of the membership of all committees, the chairs of such committees, and the legislative agenda for the Legislature.

The implications for this similarity in the role of political parties are obvious. The legislative agenda of the majority party and proposals from members of the majority party stand a greater chance of making it through the committees and the floor of each chamber. On the other hand, the legislative agenda of the minority party and proposals from members of the minority party will have difficulty in moving through the legislative process. Authors from the minority party would be well served to ally with members of the majority party in co-authoring legislation. And, interest groups seeking to move legislation would be well served to have a member of the majority party, and perhaps a committee chair, to carry their proposals.

Probably the most impactful difference between the lawmaking processes of Congress and the California Legislature lies in the extent to which each bill, once introduced, is entitled to a hearing and a vote. Neither the U.S. Constitution, the California Constitution, federal statute, nor California statute requires that each introduced bill is entitled to a hearing and a vote.

In California, Senate and Assembly Rules adopted by those bodies essentially provide that a bill, once referred to committee, is entitled to a hearing and a vote, unless the author chooses otherwise. On the other hand, neither the rules of the U.S. Senate nor the rules of the House of Representatives require that bills referred to committee receive a hearing and a vote. Instead, the committees, and particularly the committee chairs, have broad discretion in determining which bills are important and deserving of a hearing and a vote.

To see the profound effect of this difference in rules of procedure, let us look at some numbers. In the most recently-completed 113th Session of Congress (2013-2015), 10,637 bills were introduced. When the Session ended, 8,565 of these bills (81%) had been referred to committee with no further action. Another 613 bills (5.8%) had been reported by committee (voted upon favorably) with no further action. Another 388 bills passed the House, and 83 bills passed the Senate. Fewer than 300 pieces of legislation made it to the President’s desk for signature or veto. Clearly, while thousands of bills are introduced each year in Congress, most do not get a hearing, let alone a vote. Most bills simply die in committee without any action.

The benefit of working out differences beforehand in California is reinforced by the sheer volume of legislation that is processed by committees and the Legislature.

On the other hand, in the most recently-completed legislative session in California (2013-2014), 4,233 bills were introduced. The vast majority of these bills received at least one hearing and at least one committee vote. In fact, almost half (46.5%) of all bills introduced made it all the way through the process to the Governor. A total of 1,970 bills were heard and voted upon favorably in multiple committees, as well as the floor of each house, before being sent to the Governor for signature or veto. Clearly, in California, opportunities for hearings and votes are a predominant aspect of the process.

Let us consider the effects of these practices, starting with Congress. Because you know that there is no guarantee that your bill will get a hearing or a vote, and because you know that most bills die in their first committee, what can you do to enhance the chances your proposal will at least be heard and voted upon? For starters, it will help greatly if you are on the committee to which your bill is first referred. Hopefully, your party is in the majority, and you are on good terms with the chair of the committee. If not, you ought to be looking for a co-author from the majority party who also sits on the committee. In addition, you ought to be talking with interest groups and others who can influence the committee leadership regarding the bill. Finally, you might attempt to find a majority-party legislator in the other chamber to introduce the same or similar legislation.

In contrast, if you are moving a bill in the California Legislature, you know that it will be entitled to a hearing and a vote. What should you do to enhance the chances your proposal will pass? Hopefully, again, you are a member of the majority party. Because you know you are going to get a hearing and that a vote will at least be scheduled, it makes sense that you would communicate and negotiate with committee members beforehand. If you can find out where the votes are in the committee, you can negotiate revisions and amendments as necessary to enhance the chances of passage once the bill comes up for hearing.

Congress and the California Legislature often become “gridlocked” over important policy changes because they cannot muster the requisite supermajority votes.

In addition, you should be working with interest groups and other allies who should also be contacting committee members beforehand, as well as showing up on the date of the hearing to provide testimony in support. On the other hand, if you sense that those in opposition to your bill may be putting the bill in jeopardy, you might consider meeting with those parties to explore a compromise. While it probably helps if you sit on the committee to which your bill is first referred, it is far less important than if you were moving a bill in Congress.

The benefit of working out differences beforehand in California is reinforced by the sheer volume of legislation that is processed by committees and the Legislature. There is only a finite amount of time for committee hearings, and the agendas are often quite crowded. Working out language changes beforehand enables the hearings to focus on a brief debate of the merits of the bill between proponents and opponents, allow for nominal discussion by committee members, and then vote to pass or defeat the bill.

A second major difference between Congress and the California Legislature is in the way committees make decisions regarding the amendment and revision of proposals. As noted earlier, the general practice in California is to attempt to work out matters beforehand. If and when disputes arise in committee, they are often worked out in the context of the public committee hearing. Members of the committee (or the committee’s analysis of the bill) may suggest amendments, which the author can usually accept or reject. The author can also ask that the vote be postponed and the bill be brought back to the committee for a future hearing and vote.

In contrast, the process in Congress uses the public hearing to gather information—including support and opposition—regarding a bill, but amendments and revisions are not immediately decided upon in the context of that hearing. Instead, bills that are expected to receive majority support go through a process called “mark up.” Here, in a subsequent meeting, members of the committee and committee staff go through the proposal in detail and decide on appropriate changes.

In Congress, most legislation (with the exception of an override of the President’s veto and a few other limited measures) only needs a simple majority to pass.

Each particular amendment or revision is voted up or down (each committee member has one vote), and the committee also votes on whether to send the bill forward with amendments, or whether to table or postpone action. Importantly, while the mark up is generally open to the public, the sessions are conducted without testimony or participation from outside parties, including the author (if not a member of the committee) or interest groups for and against.

Again, these differences in the way committees make decisions about amendments and revisions have important implications. Obviously, if you are moving a bill in Congress, you will want to be part of the discussion regarding amendments and revisions to your legislation when it is scheduled for “mark up.” To do so requires that you be a member of the committee doing mark up. Failing that, you should at least have a co-author or close ally who sits on the committee, and who can represent your interests and point of view.

A final significant area of difference between the lawmaking processes of Congress and the California Legislature has to do with the vote requirements necessary to pass legislation, and the rules for structuring and limiting debate. The California Constitution specifies many kinds of legislation that require a supermajority (two-thirds) vote, including: a tax increase, most appropriations, proposals to amend the California Constitution, urgency bills, and a vote to override a Governor’s veto. In Congress, most legislation (with the exception of an override of the President’s veto and a few other limited measures) only needs a simple majority to pass. One might conclude that Congress has an easier job of passing legislation, but this is not the case because of rules regarding debate.

Generally speaking, the rules of the U.S. Senate and the House of Representatives enable legislative leaders to structure and limit debate more than in the California Legislature. The major exception occurs with the rules of the Senate, where floor debate is virtually unlimited. Historically, this has led to use of the “filibuster” where members bring the operations of the Senate to a standstill though endless debate of a proposal.

In Congress the committees tend to take over control of legislation.

The only way to limit debate when faced with filibuster is through a “Motion for Cloture.” which requires a three-fifths (3/5th) vote. Thus, unless 60 Senators vote to limit debate, the use of the filibuster can prevent a measure from ever coming to a vote. Effectively, this means on many occasions that a bill can not really pass the Senate unless it has 60 votes. A minority block of just 41 Senators can prevent a bill from passing the Senate.

The wide variety of proposals that require a two-thirds vote in California, and the vote requirements for a motion for cloture in the U.S. Senate often present hurdles that are difficult to overcome. Congress and the California Legislature often become “gridlocked” over important policy changes because they cannot muster the requisite supermajority votes.

Over the years, many critics have called for change, arguing that the lawmaking processes are too easily gridlocked, and that the people are not being served by inaction. Barring future change, when considering the political feasibility of bills in Congress, one should always consider the minority party’s ability to stop legislation in the Senate with a filibuster. And, for many specific kinds of legislation in California, one must remember that just 14 of 40 Senators, or 27 of 80 Assembly members can prevent certain types of bills from passing.

While we have just scratched the surface on some of the important similarities and differences in the lawmaking processes of Congress and the California Legislature, it is clear how impactful these similarities and differences can be. When moving a bill in the California Legislature, the authors of bills and those advocating such legislation retain a lot more ability to negotiate and compromise on the language of their proposals; whereas, in Congress the committees tend to take over control of legislation.

When evaluating the prospects or political feasibility of legislation, it is important to take into account the parties in control of the respective chambers and how legislation is controlled and modified by the committees. Tactics and strategies for moving legislation will vary considerably, depending on whether a measure is being moved through Congress or the California Legislature.

Finally, knowing the differences between Congress and the California Legislature will also help one make better decisions in terms of whether to introduce a proposal as a bill in Congress or a bill in the California Legislature. And, knowing the similarities and differences will help us make better assessments of the weaknesses in the respective lawmaking processes, including recommendations for change.
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Ed’s Note: Thomas Nussbaum is the former Chancellor of the California Community Colleges. Chris Micheli is a lobbyist with Aprea & Micheli. Both are Adjunct Professors of Law at the University of the Pacific McGeorge School of Law.