Sen. Jeff Denham, R-Modesto, is seeking to end a practice he claims violates Senate rules: “polling” by the Senate Rules Committee.
Polling is a practice by which the five members of the Rules Committee are asked which way they would likely vote on a particular bill, without the Committee actually meeting. This powerful committee also confirms the governor’s appointees, decides which bills get heard by committees and determines staffing and office space for the 40-member Senate.
Denham and Republican staffers say that at least two controversial Democratic bills were saved by polling during the last session, each when they were nearing important deadlines. His office has obtained an opinion from the Legislative Counsel which appears to state that polling violates Senate rules.
According to the Senate Rules committee, Denham said, polling is only done on “non-controversial” bills. This explanation doesn’t appease him.
“I don’t think it should happen at all,” Denham said. “If you’re up against a deadline, introduce it next year.”
Jim Evans, Steinberg’s communication director, said Denham is trying to make an issue of a practice that has been going on for at least 14 years with Republican participation.
“The purpose of it is to avoid stopping floor session every ten minutes to meet off the floor,” Evans said. “Inherently, it’s a bipartisan process. Both Republican and Democratic members are asked their opinion.”
According to an Oct. 8 letter signed by deputy legislative counsel Michael Kerins, “a Member of the Legislature serving on a committee may not lawfully cast his or her vote by telephone, rather than by being physically present at a hearing.”
Evans said that Steinberg has asked Legislative Counsel for a second opinion clarifying some points, but that he did not know when this might be available. He also noted that the Senate leader of each party appoints members to the Rules Committee, who are then expected to do what the leaders asks.
As evidence of the practice, Denham offered up a memo from the Rules Committee titled "Items Polled Aug. 22, 2008." It listed six bills, all of which were given unanimous consent for reconsideration by the five sitting members of Rules at the time: Don Perata, D-Oakland, Gil Cedillo, D-Los Angeles, Alex Padilla, D-Los Angeles, Jim Battin, R-Palm Desert, and Bob Dutton, R-Rancho Cucamonga. On the current Rule Committee, new Senate leader Dave Cogdill, R-Fresno, replaced the termed-out Battin with Sam Aanestad, R-Grass Valley. Steinberg replaced Padilla with Jenny Oropeza, D-Long Beach.
Aanestad said that he has no issue with polling, though so far he has only been polled once on a "simple procedural matter."
"I view the practice as an integral part of running a smooth and efficient upper house," Aanestad said. "My understanding is that previous Rules members did not get polled on issues that warrant a full public hearing with testimony, and I would not expect to be asked to do something like that. If an issue warrants a hearing, that hearing takes place."
The bills listed included AB 2293 by Assemblyman Kevin De Leon, D-Los Angeles. The measure increased the ability of wine and liquor companies to provide free products at invitation-only events. It passed and was signed into law last year, with little Republican support.
According to the memo, the Rules members were polled and consented to a request by then-Sen. Tom Torlakson, D-Antioch, chair of the Appropriations Committee, to waive two rules so that committee could meet to reconsider AB 2293.
On Aug. 26, Appropriations passed the bill by an 8-5 vote. Four of the No votes came from Republicans.
Like Aanestad, Battin defended the roll of polling.
"If the Rules Committee didn't poll it would cause the session to start and stop over and over again," Battin said. "The reason polling started in the first place was members complained the work of the Senate was not getting done. Controversial issues are not typically polled. They are saved for committee. The "Diagio" bill became controversial after the waiver was given and the bill was changed in Approps."
A more controversial bill that may have been saved by polling, ironically, the one that didn’t make it into law in its original form. AB 887 by Assemblyman Hector De La Torre, D-South Gate, began its life as a bill dealing with Public Utilities Commission rate structures. On June 5, 2005, it was amended to set new restrictions on eminent domain by local government. The bill had widespread support, but was opposed by the conservative National Federation of Independent Business for not being strong enough.
On July 11, 2007, AB 887 failed 2-3 in the Senate Local Government Committee when then-Senator Mike Machado, D-Linden, didn’t make it to the hearing. It was unanimously granted reconsideration, with Republican Sens. Dave Cox, R-Fair Oaks, and Tom Harman, R-Orange, consenting. But the reconsideration happened after the meeting had adjourned, violating Senate Rules. After members of the Rules Committee were polled, reconsideration was granted, and it passed 3-2 the next day.
Some Republican staffers and Senators were angered by the move, according to several sources.
The bill eventually passed to the Senate floor, where it sat for almost a year until it was made moot by the June 3, 2008 election, when voters passed a pair of eminent domain measures. Proposition 98 passed by a wider margin than Proposition 99, which was supported by conservative groups. Two months later, AB 887 was gutted to create a bill to allow the city of Lynwood to lease the old Lynwood Armory for an expansion of their City Hall.
Denham criticized polling and other Senate practices in a Dec. 5 editorial in the Orange County Register entitled “Senate, stick to the Constitution.” In it, he called polling “sneaky” and said “This phony voting dodges public notice and proper discussion of the people’s business.”
He also criticized Big Five meetings—consisting of the Governor and the party leaders from each house—as a “covert”, an ineffective way to negotiate a budget, as well as the practice of “after the fact voting.” This is an Assembly practice by which members can add their vote later if they were not on the floor the first time.
The issue might be framed by Denham’s political ambitions. In December, he announced that he would run for Lieutenant Governor. Another backdrop may be his long-simmering battle with recently termed-out Senate Pro Tem Don Perata, D-Oakland. Perata focused on Denham after he was unable to get the Republican votes needed to get the 2007-2008 budget through the state Senate until long past the deadline. He eventually started a recall campaign against Denham, who had been re-elected with 61 percent of the vote in 2006. Perata dropped the campaign last May when it failed to garner much support in polls.
Polling, Denham said, is one of numerous behind-the-scenes practices in the Senate that pre-dated Perata, but grew more egregious under his leadership. He also praised the ethics of new Senate leader Steinberg, saying he had high hopes he would crack down on these practices.
“We’ve got to bring transparency back to the Senate,” Denham said.