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| California’s Legislature | ||
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The California state legislature is comprised of two bodies: the assembly and the senate. This bicameral arrangement is typical of every state in the union except Nebraska. The 80 members of the assembly are elected for two-year terms, and the 40 members of the senate are elected for four-year terms. Under Proposition 140, assembly members may serve a maximum of three terms (six years), and senators are limited to a maximum of two terms (eight years). Half of the senate and the entire assembly are elected in November of every even-numbered year.
The size and representation of each assembly and senate district is extremely important in the balance of democratization. Between 1923 and 1965 California’s legislature was fashioned much like the congressional model: Representation in the assembly was based on population (like the House of Representatives) and in the senate on counties (like geographic area in the U.S. Senate). The result was that rural central and northern counties dominated the legislature. For example, under the “federal plan” adopted in 1926, 21 senators from small northern and central counties represented less than 10 percent of the population; Los Angeles County, at the time with 35 percent of the state’s population, had only one senator. The U.S. Supreme Court decision in Reynolds v. Sims (1964), and the subsequent decisions mandating “one-person/one-vote” in legislative districting, had a profound effect on the California legislature.1 California’s 1966 elections ushered in a younger, better-educated, urban-based, more diverse cast of legislators, breaking the northern and central state’s rural veto power over southern urban interests.
Legislative mapping is critical in defining power relations in the legislature. Every 10 years, following the national census, the legislature must reapportion itself, drawing new district boundaries to equalize the shifting demographic changes. The intense political competition in California has made redistricting a hardball sport, pushing more mundane legislative business aside during reapportionment battles.2 Typically, the majority party in the legislature will manipulate the district boundaries to increase its number of “safe” (noncompetitive) seats. The legislature adjusts all 120 districts in the state and reclasss California’s 53 congressional districts, so the stakes are quite high. The results are like abstract art, with some districts having very unusual patterns—one senate district ran from a section of the California coast clear across the mountains and deserts to the Arizona border. More importantly, the process gives an unfair advantage to the majority party in open-seat races.
So gridlocked and distasteful have the last few reapportionment battles in California been that the battle has spilled from the legislature to the courts and the initiative process. In 1991, after Governor Wilson vetoed the legislature’s redisricting plan, the state supreme court appointed three retired judges (“special masters”) to draw up a more “objective” plan, which remained in place through 2000, when a Democratic legislature and governor redrew the map. After Schwarzenegger became governor, a Republican plan to hand redistricting authority to another panel of three retired judges was placed on the ballot for a special election in 2005. Schwarzenegger campaigned hard for Proposition 77, but it was voted down, 59 percent to 41 percent, in the special election, along with a few other ballot measures designed to advance his agenda through the initiative process.
In November 1966 California voters overwhelmingly approved Proposition 1A, which sought to professionalize the part-time legislature.3 Staff consultants were added, as were specialized adjunct offices including the senate and assembly offices of Research, Legislative Counsel, the Audit General, and the Legislative Analyst office. The California legislature was the model for other states to emulate. It was efficient, orderly, modern, and, most essentially, corruption free. In the early 1970s it was rated by most experts of state governance as the nation’s best state legislature. By the 1990s, however, California’s legislature had lost much of its luster. Corruption, ideological and institutional gridlock, and budgetary politicking gave momentum to government reform efforts, though the results have been underwhelming.4 While legislators collect annual paychecks of $99,000, plus generous expense accounts, the multi-billion-dollar state budget still languishes each year past its constitutional deadlines. While partisan gridlock continues to dominate both houses, special interests have been amassing war chests to circulate confusing, often self-serving, propositions onto the California ballot through the initiative process. Reforming the legislature has proven to be a massive undertaking. Many argue that campaign finance reform heads the list of necessary changes. To be competitive in a typical state legislative race, a candidate must raise between $500,000 and $750,000. Proposition 112 cut down on potential payola scenarios by outlawing the practice of giving large honoraria to legislators.
In 1990, voters expressed their frustration with the legislature’s scandals and gridlock—not by voting incumbents out of office but by passing term limits. Proposition 140 limited state senators to two four-year terms and members of the assembly to three two-year terms. Supporters of the initiative argued that term limits would limit corruption and lead to a new generation of “citizen-legislators,” whose interests would be closer to those of their constituents.
During the late 1990s, both chambers suffered from the loss of experienced members. The brain drain was most severe in the assembly because two-year terms coupled with the limitations of Proposition 140 ensured that at least one-third of the chamber would be rookie lawmakers. (Termed-out members of the assembly could still serve eight years in the senate, where their lawmaking experience would be an asset.) Critics of term limits feared that the reform would undo the benefits accrued by professionalizing the legislature in the first place because inexperienced lawmakers would have to rely on bureaucrats, lobbyists, and staffers for information, and that it might weaken the institution relative to the governor. The voters were unimpressed by these arguments in 2008, when they rejected a measure to reform the term limits law. Proposition 93 would have reduced the maximum number of years in the legislature from 14 to 12 but would have allowed legislators to serve the entire time in a single chamber instead of skipping from the assembly to the senate. One provision of Proposition 93 would have “grandfathered” incumbent legislators, so that the time already served would not have applied to their new 12-year limits. Essentially, the measure allowed them to start their term limit clocks over again. Opponents of Proposition 93, including the state Republican party, seized on this provision. Ads featuring Assembly Speaker Fabian Nunez and Senate Pro Tem Don Perata (both Democrats) reminded voters that the reform would allow each of them to stay in their posts 12 more years. “The law,” said one ad, “would let termed-out politicians stay in office and preserve their opulent lifestyles.” California’s term limit law remains unchanged, but institutional reform will continue to be a major issue.
The composition of the legislature’s membership does not mirror the state’s diversity. Asian legislators are grossly underrepresented, given their proportion in the general public—as are Latino legislators (although Latinos are the fastest-growing group of legislators, reflecting the statewide increase in Latino politicization). About one-quarter of the legislators are female—although women comprise over half of the state’s population. African American legislators comprise around 8 percent of the total legislature—about equal to their percentage in the overall public. There are currently three open lesbians who serve in both houses. White male legislators make up around 75 percent of the California legislature. The predominant occupation of most who enter the legislature is attorney, followed by businessperson. Critics argue that the lack of diversity represented by sitting legislators is a problem, especially when scarce resources are carved up. Others argue that representative democracy was never meant to be a pure looking-glass at ourselves. Indeed, it is the political parties that need to create an inclusive “big-tent” perspective, reflecting the concerns of all constituencies, if the legislature is to be successful.
The work of the legislature goes beyond introducing and voting on individual pieces of legislation. Beyond pure lawmaking, legislators do the following: They provide constituent services, act as monitors to oversee and check executive agencies, function as budget negotiators during annual appropriations process which sets the state’s budget, and—for those who sit in the state senate—they have responsibilities in confirming or rejecting hundreds of gubernatorial appointments to state boards, agencies, and commissions. Little of this could be accomplished without the professional assistance of personal member and institutional legislative staff. Personal staff helps the member in a number of ways: They are his or her eyes and ears in the district—helping constituents and looking after state issues as they impact the district; capitol personal staff help draft speeches, prepare and analyze bills for the member, and work with other party caucus staff to coordinate joint efforts. Institutional staff assist the entire membership of the legislative branch. For example, the legislative analyst office prepares an analysis of the governor’s annual budget as well as assessing the fiscal implications of other legislative proposals and ballot measures. The legislative counsel office drafts the actual pieces of legislation introduced by every member of the legislature and offers legal opinions to members on state matters. Finally, the audit general office conducts both management and fiscal audits on behalf of the oversight function the legislature constitutionally possesses.
The assembly and senate each have unique internal rules regarding leadership structure, committee formation, and constitutional responsibilities. The senate serves under the state constitution as a confirming or ratifying body for gubernatorial appointments. And while the “power of the purse” is a joint legislative responsibility, the annual state budget bill traditionally starts in the assembly, which is closer to the electorate. A member of either house may introduce a bill, and a majority—21 votes in the senate and 41 in the assembly—is needed for passage. A two-thirds majority is needed for “urgency” measures, constitutional amendments, and to pass the state budget. As in the U.S. Congress, most legislative work gets done in standing or select committees. Assembly members generally serve on at least three committees, while senators, due to their smaller numbers, serve on four or five committees.
As on the federal level, leadership differs in each house. The lieutenant governor is technically the senate’s presiding officer, yet he or she is rarely present and votes only to break a tie. The presiding officer of the senate is the president pro tempore, who also sits as ex officio chair of the powerful Senate Rules Committee. The Rules Committee assigns all senators to their respective committees and assigns all bills to committees.5 The senate president pro tempore is third in line of succession should the governor and lieutenant governor be unable to administer their offices or are absent from the state.
The speaker of the assembly has long been regarded as the second most important office in the state.6 Other than the governor, no one commands more centralized power, visibility, and control over legislation as the office once dubbed the “Imperial Speakership.” At one time, such speakers as Jesse Unruh and Willie Brown enjoyed the power to preside over the chamber and dominate all assembly floor action, the power to select all chairs and vice chairs of the assembly’s committees, and the power to distribute all resources of the chamber—including such perks as prime capitol office space, additional staff, and larger district budgets for sympathetic allies. The speaker can also influence the nomination of other majority leadership positions— including the speaker pro tempore, majority floor leader, and caucus chair. Successful speakers have maintained party discipline by centralizing campaign contributions from influential special interests who wish to curry favor with the majority party. During assembly elections, the speaker has traditionally used his or her campaign war chest and consultants on behalf of his or her party faithful in order to win or retain legislative seats. Once a member was elected—aided in large part by the speaker’s generosity—the member was expected to be loyal to the speaker’s leadership and agenda. While many of the absolute powers of the Imperial Speakership have been eroded or chipped away through the passage of term limits and restrictions on the transfer of campaign funds, the speaker still retains a central role in California’s legislature and governance.7 Speakers in the post-Willie Brown era have had to quickly advance their agendas and seek new governing coalitions to cement their leadership.8
There are three types of legislation. A bill is a proposed statute that, if passed, becomes a codified law. A constitutional amendment is a change to the state constitution, requiring a two-thirds vote of each house to be placed in front of the voters in the next election. Resolutions are legislative expressions or opinions; they may range from an expression honoring a single constituent to a demand that another tier of government do something or take a particular action. Resolutions have no legal force, only that of moral suasion. They are normally passed on a voice vote and are not subject to a gubernatorial veto. All legislation is signified by a set of initials, denoting its type and origin, as well as a unique identification number. For example, the number of a bill originating in the assembly is designated with an “AB,” while a bill that originates in the senate begins with an “SB.” The 3,000 bills introduced each year in the legislature come from every sector of California. While they must be carried and authored by a member of either chamber, the ideas for bills may come from the suggestions of average constituents or from any of the other actors in California politics, such as the governor, the judiciary, state constitutional officers, lobbyists and special interests, media, local and county governments, or from bureaucrats.
FIGURE 7.1 THE LIFE CYCLE OF LEGISLATION
If a bill passes one chamber, it is sent on to the other, and the process is replicated. If amendments are added in the second house, it must go back to the house of origin for a vote on the changes. If the changes are approved, the bill goes immediately to the governor for signature or veto. If changes are not approved the bill goes to a conference committee composed of three senators and three members of the assembly. The conference committee may kill the measure if there is no agreement or amend it still further and issue a conference report, which is then sent back to both houses for approval. If both approve, the measure goes to the governor. If one house rejects the report, additional conference committees may be formed to try to iron out differences.
Aside from the legislature, another important source of law is the electorate itself. Progressive era reformers wanted the public to be able to bypass the legislature through the instruments of direct democracy. Because of their belief in the corrupting influence of big business over politics, the Progressives were convinced that an active and attentive electorate should check their elected representatives through direct ballot measures. By 1911 the Progressives succeeded in adding three instruments to the state constitution, the initiative, the referendum and the recall. These tools empowered Californians to make policy themselves—and even to reverse the actions of government—while preserving the framework of representative democracy.
The initiative is a tool that citizens can use to amend the state constitution or establish a state statute. To place a constitutional amendment on the ballot, petitioners must gather the signatures of 8 percent of registered voters (based on the number of voters in the last gubernatorial election). For a simple statute, only 5 percent is needed. In real numbers, this means that in the 150 days permitted to circulate a petition, one needs to collect over 690,000 valid signatures for a constitutional change and more than 430,000 valid signatures for a statutory initiative. This is no easy task for grassroots activists. It has become relatively easy, however, for well-financed interests to place initiatives on California’s ballot. The business of proposing initiatives, circulating petitions, and campaigning for the measures has become a major industry in California.
The use of paid signature-gatherers to qualify ballot proposals increased dramatically in the 1960s and 1970s. An attempt to restrict spending on ballot initiatives in 1974 was struck down by the California supreme court after the U.S. Supreme Court ruled that most campaign spending limits were unconstitutional on the grounds that they violate free speech.9 It has become common for political consulting firms to initiate ballot measure drives simply to generate business. It is not unusual for a single company to gather the signatures, raise money, and produce ads in favor of an initiative that it initiated in the first place. In the 1980s, a Georgia manufacturer of lottery tickets, working with the Irvine-based firm Butcher-Forde, spent $2.3 million to qualify and campaign for Proposition 37, which resulted in the California state lottery.10 In 1992, all seven of the initiatives that appeared on the general election ballot were qualified with the help of just two firms: Westlake Village-based Kimball Petition Management and Sacramento-based American Petition Consultants.11 Ironically, the initiative process, which originated in a reform movement meant to limit the influence of special interests, has empowered those interests at the expense of representative democracy. Table 7.1 reveals the broad range of subject matter and the increasing frequency of proposed initiatives and statewide referenda in the decades since 1912.
Of the 23 states that allow statewide initiatives, only 17 allow constitutional amendments through this process, and California places the fewest restrictions on the content of these initiatives.12 The only check to the citizen initiative constitutional amendment is final judicial review by the courts. For example, in 1964 the U.S. Supreme Court ruled unconstitutional Proposition 14, which was intended to repeal the Rumford Fair Housing Act, which prevented racial discrimination in the sale of homes. The constitutional amendment passed with over two-thirds of the statewide vote, yet was ruled null and void.13 A more recent constitutional amendment, Proposition 187 (see Chapter 13), suffered a similar fate when parts of the law were overturned in the courts.
There are two types of referenda. The first is the “protest” referendum, which gives voters the power to cancel a piece of legislation approved by the legislature and the governor before it actually goes into effect. Typical legislation (except for urgency measures) have a time delay of 90 days after passage before the law is enacted. A petition of at least 5 percent of the votes cast for all candidates for governor in last gubernatorial election can suspend this legislation until the next statewide election, giving the voters an opportunity to register their preferences. The referendum has rarely been used at the state level because of the difficulties of gathering so many signatures within a 90-day window. In one recent exception, voters overwhelmingly approved Proposition 163, overturning the state “snack tax” in 1992.14
Referenda have been more common at the local level to halt unpopular municipal acts. The second type of referendum, which is used more frequently, follows the state constitutional requirements that all legislatively based efforts to sell state bonds, as well as all legislatively sponsored constitutional amendments, be put before the voters. Thus, it is by legislative action rather than by petition that this type of referendum appears on the ballot. If the legislature wants to amend a proposal previously passed through the initiative process, such action must first pass both houses of the legislature and then appear on the ballot for popular vote.
Table 7.1 INITIATIVES AND REFERENDA BY SUBJECT, BY DECADE:
NUMBER ON BALLOT (NUMBER APPROVED)
*General category. Bond acts are broken down into specific categories, such as education.
The recall is a special election held to remove an elected official before his or her term expires. The recall had never been used successfully against a statewide-elected official before Governor Gray Davis was removed from office in 2003. That recall (discussed in Chapter 12) eclipsed a significant event in the 1990s, when voters recalled two state legislative leaders, including the assembly speaker.
In order to mount a recall, petitioners must gather signatures of 12–20 percent of those who voted in the last election. If this effort is successful, a special election is held to decide whether to remove the official before the end of his or her term. A recall is not the same as impeachment, which is available to the legislature if it seeks to remove a sitting official for malfeasance. It became easier to launch a recall in 1974, when voters approved a statewide initiative that streamlined the requirements to qualify a recall election for the ballot. Proposition 9 removed the waiting period to begin gathering signatures for a recall petition and made all elected officials subject to recall before the end of their term, even if they had not violated any law.
Because there are no longer any specified grounds needed to remove an official, recall petition drives have been increasingly used to punish politicians for unpopular policy positions and performance. The first successful recall was used against Los Angeles-area Republican Assemblyman Paul Horcher by constituents outraged at his support for Democratic Speaker Willie Brown in 1994. The following year, voters in Orange County recalled Republican Assembly Speaker Doris Allen over her power-sharing agreement with assembly Democrats. The gun lobby tried and failed to recall Senate Pro Tem David Roberti in 1994 over his support of an assault weapon ban. These types of recalls against state representatives have escalated not because of concern over corruption, as the Progressives had envisioned, but purely for revenge by highly mobilized interest groups.15
The legislative process seldom produces tidy or clear outputs. The courts become active players in the policy process when new laws are subject to judicial review. Even relatively uncontroversial state laws are products of multiple compromises. Vague and general laws are enacted, reflecting the unresolved tensions that were present in the debates over their formulation. Judicial interpretation is often required to break the political and policy deadlocks.
Direct democracy, an innovative reform of the Progressive era, has become problematic in the setting of modern-day California. Frustrated voters have preferred to use the initiative process to lash out at the system through term limits and other initiatives, which undermine the effectiveness and discretionary power of elected representatives by heaping new amendments onto the constitution. Term limits may only serve to enhance the power of the bureaucracy, as legislative and constitutional “short-timers” lacking experience in government are forced to rely on agency expertise. At the same time, special interests have learned to effectively exploit the initiative process by running big-budget campaigns and inducing policy changes at the ballot box, effectively bypassing the opportunity for meaningful debate within a democratically elected legislature.
Columnist David Broder expressed this sentiment when he commented that California policy suffered from “Californocracy.”16 By allowing non-elected citizens to place measures on the statewide ballot and to approve or disapprove specific policies, he argued, representative democracy suffers. The legislature is too often encouraged to pass difficult decisions on to the public—a public that is too often apathetic and uninformed. On the other hand, there is a valid reason for the endurance of direct democracy. Californians demand input and participation, even if the result is often less than desirable. A process that grants citizens the potential to participate is perhaps more important to Californians than the outcome.
1. See Baker v. Carr, 369 U.S. 186 (1962); Wesberry v. Sanders, 376 U.S. 1 (1964); Reynolds v. Sims, 377 U.S. 533 (1964); Mahan v. Howell, 410 U.S. 315 (1973); City of Mobile v. Bolden, 446 U.S. 55 (1980).
2. See A. G. Block, “The Reapportionment Failure,” California Journal 22 (November 1991): 503–505.
3. Proposition 1A was a product of legendary Assembly Speaker Jesse Unruh.
4. Between 1986 and 1994, for example, Shrimpgate, an FBI sting focused on the shrimp market, netted several legislators, staff, and lobbyists in extortion, racketeering, and conspiracy charges.
5. Much of the power of the Rules Committee is in its ability to “kill” a bill simply by sending it to an unsympathetic committee.
6. Dan Morain, “Assessment of Brown’s Speakership Is a Mixed Bag,” Los Angeles Times (June 8, 1995): A1.
7. As demonstrated in Propositions 68 and 73.
8. John Borland, “Fade from Brown,” California Journal 22 (April 1996): 8–13.
9. See Hardie v. Eu, 18 Cal. 3rd 371 (1976); Buckley v. Valejo, 424 U.S. 1 (1976).
10. For a discussion of the unintended consequences of direct democracy, see Peter Schrag, Paradise Lost: California’s Experience, America’s Future (New York: The New Press, 1997), pp. 188–256.
11. Charlene Wear Simmons, “California’s Statewide Initiative Process” (Sacramento: California Research Bureau, 1997).
12. Some critics have called the state constitution “hyper-amendable.” For example, 27 constitutional amendments appeared on the ballot in the form of initiatives between 1980 and 1994, and 10 of them were approved by the voters. See Bruce Cain, Sara Ferejohn, Margarita Najar, and Mary Walther, “Constitutional Change: Is It Too Easy to Amend Our State Constitution?” in Constitutional Reform in California, Bruce Cain and Roger Noll, eds. (Berkeley, CA: Institute of Governmental Studies, 1995).
13. See discussion in Raphael J. Sonenshein, Politics in Black and White (Princeton, NJ: Princeton University Press, 1993), pp. 68–73.
14. Amy Chance, “Welfare Measure Loses: Snack Tax Repeal Wins,” Sacramento Bee (November 4, 1994): A1.
15. Eric Bailey and Dan Morian, “Capitol Game: Revenge of a Spurned Politician,” Los Angeles Times (June 7, 1995): A1. Also see A. G. Block, “A Twisted Tale of Revenge,” California Journal 27 (January 1996): 34–41.
16. David Broder, “Californocracy in Action,” Washington Post (August 13, 1997): A21.