Second year end-of-session rule reminders

August means not only the end of this year’s Legislative Session, but also the end of the current 2-year Session. The California Constitution guides us in determining these dates. So, as the 2023-24 Legislative Session comes to a close on Saturday, August 31, there are a number of reminders of key rules to keep in mind during the final four weeks of the Session.

Although the following items are not an exhaustive list, they cover some of the most frequently-asked questions regarding process items at the end of the 2-year California Legislative Session:

72-Hour In-print Rule
A bill cannot be passed or become a statute unless that bill and any amendments have been in print and published on the Internet for at least 72 hours before the vote, unless the Governor has submitted a statement that the bill is needed to address a state of emergency, which is narrowly defined. As a result, with the August 31 adjournment date, bills will have to be in their “final form” by midnight on Wednesday, August 28. In addition, no bill may be passed unless a majority of members of each house votes in favor of the bill.

Consent Calendars
There are different rules between the Senate and Assembly regarding what is a measure for the consent calendar on their respective floors. For example, under Senate Rule 28.3(a), if a Senate bill or Assembly bill is amended in the Senate to create a new bill or to rewrite the bill, a standing committee may not place the bill on its consent calendar. In addition, there is a “special consent” calendar used on the Senate Floor, as well as “batching” on the Assembly Floor, both of which are essentially measures that have support recommendations from both political parties and no legislators object to voting on those measures as a package.

Inactive Files
Bills taken off of the Senate Inactive File are returned to the Second Reading file. In the Assembly, bills previously on Third Reading that are moved to the Inactive File are subject to a “one-calendar-day notice” when removed from the Inactive File and returned to the Third Reading file.

Session Past Midnight on the Final Day
“Stopping the clock” is the term used to describe the process of continuing legislative business after the passage of a deadline imposed by legislative rule. However, there is no provision in state law to “stop the clock” in the California Legislature. During the second year of the legislative session, the state Constitution specifies that no bill may be passed after September 1 (with 5 types of bills excepted), which makes August 31 at midnight the de facto deadline to pass bills in the even-numbered year.

Policy Committee Hearings During the Last Two Weeks of Session
With a rule waiver, committees can meet during this time period. Under Senate Rule 29.10 and Assembly Rule 77.2, dealing with bills that have been substantially amended in the other house and are referred back for a policy committee hearing, those committees are not subject to the prohibition on meeting during the final two weeks of Session.

Double Jointing Versus Contingent Enactment Amendments
Although sometimes confused, there is a clear difference between these two types of amendments. Contingent enactment means there is a section in a bill indicating that it is to become operative only upon the enactment of another measure. Double jointing amendments are amendments to a bill providing that the amended bill does not override the provisions of another bill where both bills propose to amend the same section of law (often referred to, incorrectly, as “chaptering out amendments”).

Bill Locations
In addition to bills on the Second and Third Reading files, bills can also be in several other locations, but still considered on their respective Floors of the Senate and Assembly:

Unfinished Business File – Both the Assembly Daily File and the Senate Daily File contain a section titled “Unfinished Business,” which is the section that contains bills that have returned to their house of origin from the other house and await a concurrence vote due to amendments that were made to the bill by the other house. In addition, this section of the Daily File also contains bills that were vetoed by the Governor. Vetoed bills remain on the Daily File for a 60-day period after the gubernatorial veto. Thereafter, unless voted upon, they are removed from the Daily File and can no longer be considered.

Inactive File – The other section of the Daily File to be aware of is for bills that made it to the Floor of either the Assembly or the Senate, but for whatever reason the bill’s author does not want to proceed with the measure. Bills that have failed passage can be moved to the Inactive File upon request of the bill’s author. If an author has moved a bill to the Inactive File, he or she can remove it from the Inactive File at a later date with public notice, but there is a deadline for removing those bills and getting them back on the Third Reading file.

WORFs – According to the rules, bills that are not listed on the Daily File can only be taken up with either unanimous consent of the house’s members or by suspending the rules. A bill that is not listed in the Daily File, but which is taken up nonetheless, is referred to as a “WORF”. The process of taking up a WORF bill is to take the measure up “without reference to file” (WORF). In order to do so, a vote of a majority of the house’s membership (41 in the Assembly and 21 in the Senate) is required to take up a bill without reference to file.

Reconsideration
Regarding the reconsideration of bills, the same rule applies whether a bill is in committee or on the Floors of the Assembly or Senate. Only one reconsideration is in order. The first time a bill fails, it can be granted reconsideration, generally by unanimous consent or a majority vote. However, if the measure fails a second time, that is it. There is not a second reconsideration and, as a result, the bill fails passage if it fails a second time after having been reconsidered.

Placing a Measure “On Call”
There is no rule on how many times a bill can be placed on call. In other words, the Joint Rules, Senate Rules, and Assembly Rules do not cover the number of times a bill can be placed “on call,” whether it is in committee or on the Floor of either the Senate or Assembly. This question is also not covered in Mason’s Manual. The rules of the two houses state that “the call is continued by a majority vote of the Members present.”

Adopting Floor Amendments
There are limitations on making floor amendments in both houses. For example, under Assembly Rule 69, a motion to amend on the Floor is not in order the last seven days before the interim recess or the final recess, unless this rule is suspended by a 2/3 vote. The rule does not apply to adding or deleting an urgency clause or adopting double jointing amendments.

Floor Analyses
The Senate floor analyses list support and opposition positions, but the Assembly does not list any positions on their floor analyses.

Vote Changes on the Floors
The Assembly allows its Members to add or change votes after the vote has been announced, so long as the final vote is not impacted. The Senate does not allow this, except for the President pro Tempore and the Republican Leader, who can add their votes after the vote has been announced, so long as the final outcome of the bill is not affected. This is pursuant to Senate Rule 44.

Parliamentary Inquiry Versus Point of Personal Privilege
A parliamentary inquiry is a procedural question posed to the presiding officer by a legislator during a committee hearing or a Floor session. According to the Office of Legislative Counsel, a “a point of personal privilege is an assertion by a Member that his or her rights, reputation, or conduct have been impugned, entitling the Member to repudiate the allegations.”

Adjournment Motion
In the California Legislature, an adjournment motion is in order with one exception – it is not in order if a bill is still “on call” (see, for example, Senate Rule 42). Once the call is lifted, then a motion to adjourn can be made.

Budget-related Bills in August
One or more budget bills junior and budget trailer bills can be enacted any time after the Budget Bill (AB 107 this year) has passed, so long as there is a nominal appropriation in the bill and it is tied by language to the budget bill (and the trailer bill number is listed in the Budget Bill). In addition, these budget-related bills can be passed by a majority vote on each Floor of the Assembly and Senate.

Pass on File Versus Pass and Retain
A bill author may choose to “pass on file,” thus temporarily giving up his or her opportunity to take up their measure on the Floor of the Assembly or Senate, but they can return to the measure later that session day. In the Assembly, “pass and retain” precludes the measure’s author from taking up his or her bill for that legislative day. The Senate does not recognize a difference between these two actions.

Publishing Letters to the Journal
A Letter to either the Assembly or Senate Daily Journal, which is generally used to express legislative intent or explain the purpose of a bill, is published in the Daily Journal of the bill’s house of origin. The letter is signed by the bill’s author and requires approval by both the majority and minority leaders in that house as a general rule. If there are objections to publishing it, then a letter can be printed with a majority vote of the body.