Above the rules; How California legislators subvert the public interest-and even the expressed will of the voters
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The San Francisco Chronicle
Sep 22, 2002

by Editorial

Above the rules; How California legislators subvert the public interest-and even the expressed will of the voters

Remember the battle cry from a 1990 initiative for term limits and campaign-finance reform? "Drain the swamp" in Sacramento.

The phrase was coined by Attorney General John Van de Kamp in support of Proposition 131, which would have imposed term limits along with a system of public financing of campaigns.

Voters may have thought they were taking an even tougher route in opting for Proposition 140, with its more restrictive limits of eight years for senators and six years for Assembly members. The idea was to pave the way for fresh legions of citizen-politicians to enter public service.

But special-interest influence flows as freely as ever into the Sacramento swamp. Term limits have reduced the clout of the once all-powerful leadership, but not the role of money. If anything, lobbyists have gained additional leverage in an environment of constant turnover and unfamiliarity with complex subjects.

Over the years, various reforms have attempted to reduce the supremacy of leadership and restore the level of deliberation and fair play in the legislative process. These rules, however, are treated in Sacramento as if they were made to broken.

"In some ways, it is better than it used to be . . . at least now they have rules to waive," said Bob Stern, executive director of the Center for Governmental Studies and a 30-year observer of the Capitol scene. "Randy Collier (the late senator from Yreka, a powerful committee chairman known as the "father of the freeways") used to throw bills he didn't like into the river. And they
used to have hearings at (the restaurant and political hangout) Frank Fat's."

Perhaps Californians should take it as a measure of progress that several rules had to be waived for an 11th-hour bill by Sen. Don Perata, D-Oakland, to allow insurance companies to give discounts to drivers who had no gaps in their coverage. The authors of Proposition 103 immediately howled that Perata's SB689 would undercut a provision of the 1988 insurance-reform initiative: that companies could not discriminate against the uninsured who wanted to get coverage. Perata, for his part, suggested his measure would allow smaller companies to compete for the customers of the big insurers, a plus for many average drivers who like to shop around for better rates.

"The issue is this: If you stay with your own insurance company for a certain length of time, you are allowed to get a discount," said Senate President Pro Tem John Burton, who helped fast-track the bill. "My opinion is, the (so-called persistency discount) ought to be portable."

Both sides had reasonable arguments, but only one had Perata and Burton working their magic. The fix was in. The proposal, which had already been killed in a policy committee, was resurrected in the final week of the session through a process known as "gut and amend." In other words, they stripped out the contents of an unrelated bill -- in this case, one to expand prostate cancer research -- and inserted the language of an insurance bill that had already been
defeated.

The company pushing the bill, Mercury Insurance, sprinkled campaign contributions around the Capitol, including $25,000 to Perata right before the "gut-and-amend" procedure. It gave $25,000 to Gov. Gray Davis just last week, as the legislation awaited his signature or veto. It gave $100,000 to Attorney General Bill Lockyer, who might have to decide whether to challenge the bill as an illegal assault on a voter initiative.

"This is the quintessential example of what happens when big contributions come right on the heels of major legislative action that directly affects the donor," said Jamie Court, a consumer activist. "It's like drawing the connection between the liquid oxygen igniting and the rocket taking off."

Opponents of the bill were kept off balance for the last 72 hours of the session as the stealth plane SB689 rocketed through the Assembly and Senate. Hearings were announced, then postponed. Consumer-group lobbyists were kept waiting in the corridors for hours at a stretch. Finally, at 8:30 a.m. on Saturday, Aug. 31, a Senate committee had a perfunctory 15-minute hearing before voting unanimously to approve the bill.

Two senators -- Ross Johnson of Irvine and Jack Scott of Altadena -- voted "yes" and left the room before the first opponent spoke.

Burton scoffs at criticism of the hasty gut-and-amend scheme on SB689. "That must have happened to about 150 bills," he said.

Again, perhaps it is a sign of progress that opponents were allowed to speak at all. Proposition 34, the Burton-conceived "campaign reform" measure that voters ultimately approved in November 2000, was introduced at 1:55 a.m. on a Thursday and passed in a one-week rush job that permitted no opposition testimony, even though good-government groups such as Common Cause and the League of Women Voters were nearly apoplectic. The Burton bill was a brazen attempt to pre-empt the far stricter donation limits in Proposition 208, which had been challenged in court by the two major parties.

The voter-approved Political Reform Act of 1974 was supposed to assure a minimum of scrutiny and debate on all state legislation by requiring a bill to be in print for 40 days before final passage. Over the years, that requirement has been whittled to three days -- but even that rule is waived routinely.

The "gut-and-amend" tactic is just one of the ways the public interest is subverted in the Capitol. There is a common thread to all of these techniques: get money for your campaign and reduce accountability for your actions. Examples include:

TIMELY SHAKEDOWNS

It is not a coincidence that legislators concentrate their fund-raising events during the last weeks of the session, at the same time as their "official" workload intensifies. Lawmakers and candidates held 75 such fund-raisers while they contemplated a $100 billion budget and nearly 1,200 bills in August.

"It's indefensible," said Jim Knox, executive director of California Common Cause.

It's also lucrative. Veterans of the Sacramento political scene said the minimum contribution has risen steadily to $1,000 for social events with even the most obscure freshman legislator.

"Any pretense that these are 'dinner functions' has been done away with," Knox said. "Maybe you get get to eat, maybe you don't. If you do, it's a couple of carrot sticks, write the check . . . and go on to the next one."

But contributors do not go for the food. They go for the chance to whisper in a legislator's ear, especially at a moment when bills hang in the balance, or to get future phone calls returned.

"They're not really even campaign contributions anymore," said Stern, citing the way legislators assure each other's re-elections through reapportionment. "They're government access contributions."

SPEAKER'S CHOICE

Assemblyman Bob Hertzberg lost the respect of some of his colleagues and earned the permanent enmity of California consumer attorneys last year when, as speaker, he refused to allow a vote on legislation that would prohibit secret settlements of lawsuits involving product liability. Hertzberg decided the bill did not have enough votes to pass -- and thus he did not want to force fence-sitting members of his Democratic caucus to have to choose sides on a controversy involving two well-heeled interests, trial lawyers and big business.

Current Speaker Herb Wesson employed similar logic this year when he told fellow Democrats that he made a late-night "tough decision" to suppress a vote on financial-privacy legislation (SB773) by Sen. Jackie Speier, D-Hillsborough. It was a classic confrontation between a bill that was popular with the public and was vigorously opposed by an industry that was pouring on the pressure -- and contributions.

Wesson relented within 48 hours and allowed a vote, after furious protests from several Assembly members -- and after Speier used a "gut-and-amend" technique to ship another version of her bill toward an Assembly showdown.

A speaker should not be allowed to unilaterally stop a vote on a bill that has made it through the committee process. Period.

REINVENTIONS OF REALITY

Some members of the Assembly are adept at having it both ways on an issue -- pleasing a special interest, while concealing their true votes. Assembly rules actually allow a member to change his or her vote after the fact, as long as it does not affect the outcome. On Speier's financial-privacy bill, for example, the vote on the Assembly floor was 34 yes, 36 no. George Nakano, D-Torrance, changed his vote to "yes" within minutes of its defeat. Three other nonvoters -- Sam Aanestad, R-Grass Valley; Tony Cardenas, D-Sylmar; and Dean Florez,
D-Shafter -- later switched to yes.

The California Senate does not allow such changes. Neither do most other states. North Dakota Rep. Jim Kasper, a Republican leader in that state's financial-privacy campaign who has been watching the issue's troubles in Sacramento, could hardly believe that elected representatives are allowed to hide their records.

"That is the most ridiculous practice I've heard of in my life," he said. "In North Dakota, if I voted red, even if I meant to vote green, I couldn't go to the speaker and change it. Once it's recorded, it's done."

TAKING A WALK

A favorite tactic of the politically timid is to simply not vote -- which has the effect of a "no" vote, but without the accountability. Six Assembly members did not vote on Speier's version of SB773, even though they were in the chamber on Aug. 31. Count it as another small measure of progress. After all, her financial-privacy bill failed the previous year when 22 failed to vote.

We prefer the North Dakota way: If you're there, you have to vote.

TAXPAYER-FUNDED MAILINGS

Proposition 9, the Political Reform Act of 1974, was supposed to stop incumbents from campaigning at taxpayer expense through constituent "mailings" during election season. A 1988 initiative went even further, banning all mass mailings.

These laws are not being enforced by the Fair Political Practices Commission, which has allowed a ludicrously generous definition of permissible correspondence.

As The Chronicle reported last week, legislators are freely using official postage to "stay in touch" with their constituents, often with a decidedly political spin. Estimated cost: $3.5 million for July and August alone. Legislators even maintain a computer databank that helps them target mailers to the homes of voters based on their age, occupation, gender, and other personal information.

A special award for audacity goes to Assemblywoman Barbara Matthews, D-Tracy, for her 12-page pamphlet on "tips" for constituents to protect themselves against identity theft. It was mailed the same day she helped defeat a bill (Speier's SB773) that would have given consumers greater control of their financial information.

We offer her 17th district constituents who are concerned about privacy a tip that was not in the pamphlet. They might want to check out the candidacy of Republican challenger Brian McCabe, a proponent of strong financial privacy legislation.

---------------------------------------------
6 ways to enhance democracy in Sacramento

1. Outlaw political fund-raisers during peak periods of legislative activity.
2. Allow no exceptions to the rule that a bill must be in print at least three days before a final vote.
3. Require a floor vote on any bill that clears the committee level in the Assembly or Senate.
4. Prohibit Assembly members from changing their votes after the fact.
5. Require members who are present to vote on all roll calls - or dock their pay for the day.
6. Enforce a voter-approved prohibition on mass mailings at taxpayer expense.

CORRECTION-DATE: September 24, 2002

CORRECTION:
An editorial Sunday, "Above the rules," referred to a requirement in the 1974
Political Reform Act that bills must be in print 40 days before final passage.
That requirement (now 12 days) applies only to bills that involve the act itself
-- and cannot be waived. Other time limits are waived routinely in the
California Legislature, especially in the final weeks of a session. (09/24/02,
P. A2)


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