Are there ways to improve the lawmaking process in the California Legislature? I believe there are.
I believe the fundamental problem is that there are too many bills each year. There just is not enough bandwidth for all persons involved in the legislative process to sufficiently review and analyze the volume of bills.
This is absolutely not a criticism of legislators, their staff, or committee staff. The reality is there is only a handful of staff in each of the 120 legislator offices to deal with thousands of bills, as well as a small number of consultants that handle thousands of bills among the Assembly’s 33 policy committees and the Senate’s 22 policy committees.
The most commonly-suggested bill cap has been 15-20 bills per legislator per 2-year Session.
For the bills that make substantive changes in the law, and certainly those bills that are controversial and have strong proponents and opponents involved, each deserves a thorough review.
Currently, there is only so much limited time for legislators and their staff, as well as committee consultants, to discuss these thousands of bills, negotiate amendments, consider possible alternatives, etc., all done within often tight timelines mandated by the legislative calendar and the rules. This, of course, means less time for thorough analysis and the crafting of the proposed statutory language.
So, what are my possible solutions to that problem?
Reduce bill limits in both houses
The first recommendation is to reduce the current limitations on the introduction of bills (currently 50 for Assembly Members and 40 for Senators), especially now when legislators have a possible tenure of 12 years in one house and there should be adequate time to consider priorities. Of course, like most legislative rules, a legislator can petition his or her respective Rules Committee for a waiver of the bill introductions limit. The most commonly-suggested bill cap has been 15-20 bills per legislator per 2-year Session.
Require policy committees to review bill language and solicit feedback in an open forum to make sure the language actually works
Advance bill introduction deadline
The next recommendation is to require bills to be introduced by the end of January, rather than the usual third Friday in February. This will allow policy committees an additional month to consider (hopefully) substantially fewer bills and therefore allow greater scrutiny of alternatives and the bills and their language themselves.
Consider more public feedback on bills
The next recommendation is to require policy committees to review bill language and solicit feedback in an open forum to make sure the language actually works. This has nothing to do with the policy rationale for or against a bill, and whether a legislator wants or does not want to vote for the policy. Instead, this requirement is to ensure that the language is clear and can be understood and implemented and interpreted and enforced in the manner intended.
Fundamentally, the policy committees need to work through the bill’s language in greater detail, and better involve legislators and interested parties in doing so. Today, there are simply too many bills for this to be the main focus for committees. And too many bills are being passed as a “work in progress.”
For example, there could be more than one hearing on a bill. In fact, there could be a hearing to take testimony and feedback on the bill language. And then a second hearing on the bill itself could be held, concluding with a vote to pass it or defeat it.
Legislators rarely have the opportunity to consider other, or competing, solutions to address the identified problem.
In addition, more analyses could discuss the language contained in the bill, rather than have a recitation of existing law, the bill’s proposed changes, and arguments of the supporters and opponents. Because the courts, regulatory agencies, and the public generally would benefit from more explanatory material, especially as it relates to the proposed statutory language, having more time to analyze the bill in detail and will allow even better bill analyses to be written.
Consider alternatives to the introduced bill
The next recommendation is to require policy committees to solicit other possible alternatives (even non-legislative ones) to address the stated policy problem. In other words, does the public policy issue need to be addressed? If so, is a statute the right “fix” to solve the problem? Is there a better alternative, such as an agency regulation? Is there a non-bill approach?
In addition, the policy committee should consider and solicit public input whether the policy “solution” set forth in the bill is the right solution. Or is there a better solution? The Legislature usually only reviews the solution proposed in the bill that is before them for debate and a vote. In other words, legislators rarely have the opportunity to consider other, or competing, solutions to address the identified problem
Allow greater public participation in committee hearings
The next recommendation is to eliminate the dreaded “two and two rule,” which substantially curtails substantive testimony before legislative policy committees. Most observers suggest eliminating this rule or at least increasing the number of persons who can testify and for how long they can do so.
While witnesses should be admonished to keep their remarks brief and not to repeat testimony already provided, substantive testimony should not be limited by the policy committees, particularly those in a bill’s house of origin. Moreover, the rules on testimony should be consistent with all Assembly and Senate standing committees.
While there are other possible improvements to the legislative process, including those related to the adoption of the state budget and the accompanying budget trailer bills, the above recommendations would assist with the end product of state legislation.
Editor’s Note: Chris Micheli is an attorney and legislative advocate for the Sacramento governmental relations firm of Aprea & Micheli. He serves as a Lecturer at UC Davis King Hall School of Law.