How and why are Non-Disclosure Agreements used in lawmaking?

CAPITOL WEEKLY PODCAST: Last month, as California prepared to roll out a new $20 minimum wage for fast food workers, attention on an exemption for restaurants that bake their own bread surprised many, including both the bill’s author, Asm. Chris Holden, and Gov. Newsom. “Paneragate” (named for the restaurant chain that some claimed would benefit from the exemption – note that both the governor and the franchisee dispute that the exemption applies) spotlighted a little-known tool in the legislative toolbox: the use of Non-Disclosure Agreements (NDAs) in crafting public policy.

While NDAs are commonplace in the business world, their use in policy work was a surprise to many, even some elected officials. In March, Republican Assemblyman Vince Fong introduced AB 2654, which would ban lawmakers from entering into confidentiality agreements related to proposed legislation. The bill failed to advance out of the Assembly Elections Committee last week.

But is the use of NDAs as sinister as critics make out? Our guest today, former Speaker Robert Hertzberg argues that confidentiality agreements are a key part of building trust in sensitive legislative negotiations between diametrically opposed parties – and are sometimes the only way to get warring sides to the table.

:36 The use of NDAs in lawmaking

2:17 How common is the use of NDAs in policymaking?

3:07 “What an NDA does is builds trust – so that people can talk to each other”

5:49 Who is covered by this type of NDA?

7:29 Does the use of NDAs – effective or not – just look bad?

9:53 The art of blowing up the deal

12:27 “It’s getting harder and harder and harder to solve big problems”

12:43 Chilling effect

14:34 When are NDAs not appropriate?

15:14 Impact of parties NOT in the NDA

16:43 Is anything gonna change?

17:49 “It’s used in Washngton a lot more than it is here”

21:20 #WWCA