California Legislature’s unwritten rule: negotiate in secret with lobbyists, not in public

State Sen. Dave Min admonished a fellow legislator recently for talking about his bill during an open hearing, saying lawmakers were forbidden from negotiating amendments to legislation in public view.

“We have a policy in the Senate … We don’t negotiate amendments from the dais,” Min told his Democratic colleague, Assemblymember David Alvarez, this summer. “We are happy to continue discussing this offline, but I just don’t think it’s appropriate –  nor is it in the interest of our time – to be negotiating and discussing particular provisions from the dais.” 

The exchange between Alaverz and Min highlights an unwritten rule in the Capitol, one that points to a culture of backroom dealing, where secret negotiations between lobbyists, Capitol staff and legislators are what really decide the fate of laws whose impacts will be felt by millions of Californians.

Senate leaders said Min, a Democrat from Irvine, overstated the rule since committee chairs can make exceptions and debate amendments in a hearing. But Senate President Pro Tem Mike McGuire acknowledged to CalMatters that he requested “policy committee chairpersons and bill authors work to secure potential amendments prior to the (public) hearing” in order to improve the quality of legislation.

“When verbal, on-the-fly amendments are taken, there is real potential for confusion, misunderstanding and disagreement on definitions,” McGuire said. “We highly encourage robust discussion and debate at policy hearings. This is the people’s house after all. But we also want to get the amendments right because details matter on these important laws.”

The Assembly takes a similar approach to amendments, said Cynthia Moreno, a spokesperson for Speaker Robert Rivas. 

Leaving the process almost entirely up to secret negotiations has critics calling the process little more than a rubber stamp for deals made behind closed doors.

As CalMatters has reported, an analysis of every vote cast in the past five years shows that Democrats who control the Legislature vote “no” on average less than 1% of the time, suggesting the fates of most bills are decided before votes are cast.

“This is exactly the kind of conversation that should be taking place in public,” said David Snyder, executive director of the First Amendment Coalition. “The public has a right to understand why lawmakers are making the decisions they’re making.”

Assemblymember Bill Essayli, an outspoken Republican from Corona, was even more critical. 

“It’s very hard to figure out if there’s corruption involved when you don’t know who the drafters are and how language gets in a bill,” he said.

How amendments are drafted in private

The original language in almost all bills that navigate the legislative process — more than 2,500 this year — is usually changed through amendments added in committees. 

In California, that can be a high-stakes discussion done in secret between legislators and staff and lobbyists representing powerful interests for or against a bill. When there are political consequences or money is involved, the governor’s office or legislative leaders can also shape legislation behind the scenes.

Amendments can only be added by an elected legislator, but the amendments produced by negotiations usually have no names attached and they are often presented to a bill author as a take-it-or-leave-it ultimatum. 

“I calculated I think four-and- a-half years since I walked into a committee without having full agreement with the chair,” state Sen. Scott Wiener of San Francisco said at an Assembly committee hearing last year where he disagreed with amendments added to his bill. In the past, “I have come into committee with five simple words: … I accept the committee’s amendments.”

Alvarez, of Chula Vista, was also protesting amendments to his bill when Min, the committee chair who made the changes, stopped him from talking about it in public. 

Alvarez’s Assembly Bill 2560 would have made it easier to build housing in coastal zones. After he tried unsuccessfully to defy Min by contacting other committee members about his concerns with the amendments, he pulled the bill from consideration.

Alvarez said in a press release that amendments added by the committee would have made the bill “ineffective at building more housing.” 

Assemblymember Esmeralda Soria, a Democrat from Merced, and Assemblymember David Alvarez, a Democrat from San Diego, talk on the Assembly floor at the State Capitol in Sacramento on Aug. 17, 2023. Photo by Semantha Norris, CalMatters

Alvarez told CalMatters he is used to a more transparent process. He’s a first-term lawmaker and a former member of the San Diego City Council, where he said it was normal for members to debate policy changes during public meetings.

“For those of us who have served in local government … we’re used to that,” he said. “You make motions and change motions all the time, as you’re getting ready to make a decision.”

But Min said a policy limiting amendment negotiations makes sense because it’s better for lawmakers to read and understand the amendments before hashing them out in public hearings.

“If you are trying to negotiate new amendments to the bill from the dais, then we all have to react on the fly,” Min said. “We don’t have the benefit of thinking about these amendments. … We don’t have the benefit of talking to stakeholders about the value of these amendments.”

He called the private negotiations “very democratic.”

“People negotiating from the dais almost creates an appearance of impropriety,” Min said, “because what are we actually agreeing to?”

Alvarez wasn’t the only first-year legislator troubled by the culture of secrecy at the Capitol. Calmatters interviewed other rookie legislators late last year. Transparency was one of their biggest complaints.

Sen. Caroline Menjivar, a Democrat from Van Nuys, pointed to secret negotiations surrounding a proposed tax on medical care providers, where it seemed that only moneyed interest groups were invited to give their opinions.

“That shocked me a lot,” she said. “I was disgusted by this pay-to-play kind of approach.”

Assemblymember Damon Connolly, a Democrat from San Rafael, also was critical of so much of the process happening in secret.

“Certainly, from where I stood — and I think a lot of my colleagues would agree — we would love to see the old processes in the Legislature changed around more accountability and transparency,” he said.

Are California lawmakers hearing too many bills?

That so much of the process happens in secret comes down to lawmakers hearing too many bills in too short of a time, said Chris Micheli, an adjunct professor at McGeorge School of Law and a veteran lobbyist who’s written books about the legislative process.

This year alone, California’s 120 lawmakers considered 2,522 bills, sending just under half of them to the governor before the 2023-2024 session ended Aug. 31, according to the Digital Democracy database.

Rules allow state senators to introduce up to 40 bills per two-year session and Assemblymembers to introduce 50, meaning lawmakers potentially could introduce 5,600 bills every two years.

“The public has a right to understand why lawmakers are making the decisions they’re making.”

David Snyder, executive director of the First Amendment Coalition

The limits can be bypassed, however, such as with a waiver from a respective chamber’s Rules Committee.

Nineteen of the 40 senators hit or went over the bill limit this session. In the Assembly, 24 of the 80 lawmakers hit the cap or went over, according to the Digital Democracy database.

In addition to moving negotiations into private meetings, Micheli said the heavy flow of legislation also means that public hearings are rushed. Typically, a bill hearing will involve just four witnesses, two in favor and two against. The witnesses are often given two minutes each to speak.

“The public should care because there are 120 people representing over 39.5 million Californians who are creating nearly 1,000 new laws each and every year,” Micheli said. “And some of those need much more extensive discussion and debate than they are being given in our legislative process.”

As an example, he noted that the Senate’s Judiciary Committee heard 64 bills in a single hearing in July.

Outgoing San Francisco Democratic Assemblymember Philip Ting, the longtime chair of the Assembly Budget Committee, had the most bills of any lawmaker this session at 170, according to Digital Democracy. 

Since many of his bills were related to the budget, he didn’t have to abide by the 50-bill Assembly cap.  

Assemblymember Phillip Ting, a Democrat from San Francisco, on the Assembly floor on April 24, 2023. Photo by Miguel Gutierrez Jr., CalMatters

Ting doesn’t think there are too many bills, and he said lawmakers have the capacity to consider even more of them.

“It’s, frankly, not about the quantity; it’s about the impact,” Ting said. “I don’t even know how many bills I’ve introduced and how many got passed. It doesn’t really matter to me. What matters to me … at the end of the day is are we making a difference in 40 million people’s lives?”

30 seconds to debate to California bills

Others aren’t so sure. 

“You won’t be remembered for the number of bills you pass,” Ukiah Democratic Assemblymember Jim Wood, the Assembly’s second in command, told his colleagues in an August farewell speech. “Emphasize quality over quantity. We pass too many damn bills. And some of them don’t really mean much, quite frankly.”

Democratic Sen. Tom Umberg of Santa Ana chairs the Senate Judiciary Committee that heard 64 bills in one hearing this summer. Umberg said committee staff do their best to review them, but there’s only so much they can do, particularly toward the end of the session when changes are made within hours of a vote.

“It often doesn’t do justice to making sure that we create an effective policy,” he said.

Many of Umberg’s colleagues agree that the Legislature hears too many bills, he said. But good luck getting lawmakers to agree to introduce fewer of them.

“I agree with all those legislators that think every other legislator should do fewer bills. And in my case, of course, I don’t think I should do fewer bills,” he said, grinning. “I just think everybody else should do fewer bills.”

Umberg introduced 42 bills this session, two over the Senate’s 40-bill limit. 

The limited public debate on so much legislation frustrates Republicans, whose leaders in the Assembly filed a complaint about debate getting shut down in the final chaotic hours of the session last month.

With the deadline approaching and dozens of bills pending, the Assembly’s leadership limited debate on bills to 30 seconds per person. They refused to recognize Republican lawmakers attempting to speak, according to the complaint from Assembly Republican leader James Gallagher of Chico. 

Fellow Republican Essayli called secrecy “par for the course” in the Democratic supermajority that he described as a corrupt “oligarchy.” 

Assemblymember Bill Essayli, a Corona Republican, speaks to his colleagues on the Assembly floor last year. Photo by Rahul Lal, CalMatters

“They introduce hundreds – thousands – of bills,” he said. “And they want to give you five minutes for debate and conversation.” 

Snyder, of the First Amendment Coalition, said it’s understandable that some of the complicated process of drafting bills has to take place outside of public view, but lawmakers should have every opportunity to debate, discuss and negotiate changes to them in public.

Discouraging them from doing so, he said, “puts an important part of the process behind closed doors, which is not good for the lawmaking process itself, generally, but also not good for democracy, generally.”

Thomas Gerrity, Sameea Kamal and Hans Poschman, members of the CalMatters Digital Democracy team, contributed to this story.