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CALIFORNIA CORPORATE & SECURITIES LAW

California Voters Reject 11th Hour Gutting And Amending Of Bills

Not quite a year ago, I wrote:

A reader of the California Constitution would be lead to believe that the course of legislation is orderly and predictable.  Under Article IV, Section 8(b), the legislature may make no law except by statute and no statute except by bill.  Every bill, moreover, must have a single subject and that subject must be expressed in the bill’s title.  Cal. Const. Art. IV, § 9.  An author can’t simply draft a bill and put it to a vote the next day.  At regular sessions of the legislature, no bill other than the budget bill may be heard or acted on by committee or either house until the 31st day after the bill is introduced unless the house dispenses with this requirement by roll call vote entered in the journal, three fourths of the membership concurring.  Cal Const. Art. IV, § 8(a).  Even then, the legislature may not pass a bill unless two additional requirements have been met.  First, the legislature may not pass a bill until the bill with amendments has been printed and distributed to the members.  Cal. Const. Art. IV, § 8(b).  Second, the bill must read by title on 3 days in each house except that the house may dispense with this requirement by roll call vote entered in the journal, two thirds of the membership concurring. No bill may be passed until the bill with amendments has been printed and distributed to the members.  Id.

Although the purpose of these requirements is to provide the public with an opportunity to know and comment on pending changes in the law, the legislature has frequently bypassed these requirements by hijacking a bill at the tail end of a session, gutting it and amending in an entirely new text.  The gut and amend technique is the often used when a bill is controversial or likely to generate significant opposition.  Obviously, the practitioners of the gut and amend have no regard for transparency or public input.

On Tuesday, California voters appear to have approved a constitutional amendment that attempts to curb this legislative legerdemain in two ways.

First, Proposition 54 requires that a bill (including changes to that bill) be made available to legislators and posted on the Internet for at least 72 hours before the Legislature could pass it.  The Legislature could act more quickly in a gubernatorial declared emergency.  Even then, two‐thirds of the house considering the bill must vote to pass the bill more quickly.

Second, Proposition 54 mandates audiovisual recording of all of the Legislature’s public meetings.  Videos must be posted on the Internet within 24 hours following the end of the meeting, and downloadable from the Internet for at least 20 years.  (These requirements will take effect beginning on January 1, 2018.)  In addition, members of the public would be allowed to record and broadcast any part of a public legislative meeting. Proposition 54 also amends state law so that anyone could use videos of legislative meetings for any legitimate purpose and without paying a fee to the state.  I haven’t checked but this may be the first use of the word “Internet” in a state constitution.  It will be interesting to see whether there will still be an Internet in 2038 or if it has gone the way of the Dodo bird and VHS recorders.

I say that the voters “appear” to have approved Proposition 54.  The California Secretary of State will certify statewide results on December 16, 2016.  As of today, the Secretary of State is reporting the vote on Proposition 54 is YES: 5,426,175, or 64.3% and NO: 3,011,501, or 35.7%.

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