ASSEMBLY THIRD READING

ATR Bill Id:ACA 25

Author:(Mullin, et al.)

As Amended Ver:June 4, 2020

2/3 vote

SUMMARY:

Temporarily permits Members of the Legislature, by two-thirds vote, to remotely attend and vote in a legislative proceeding, or to vote by proxy in a legislative proceeding if permitted by their house, during the pendency of a state of emergency declared by the President of the United States or the Governor. Provides that a Member may only remotely attend and vote, or vote by proxy as authorized, in a proceeding if the state of emergency prevents the Member from safely attending the proceeding in person.

Major Provisions

1. Provides that Members of the Legislature, through the use of technology and without being physically present in the State Capitol, may attend and vote remotely in a legislative proceeding, or vote by proxy in a legislative proceeding if authorized by their house, during the pendency of a state of emergency declared by the President of the United States or the Governor.
2. Provides that a Member may attend and vote remotely, or vote by proxy as authorized, in a legislative proceeding only if the state of emergency prevents the Member from safely attending the proceeding in person.
3. Provides that the vote of a Member remotely attending a proceeding shall have the same force and effect as if the Member were physically present in the State Capitol; and, requires that a Member remotely attending a proceeding shall be included in the determination of a quorum.
4. Defines "state of emergency" as the existence of conditions of disaster or of extreme peril to the safety of persons and property within the State, or parts thereof, including, but not limited to, such conditions as an attack or probable or imminent attack by an enemy of the United States, fire, flood, storm, insurrection, earthquake, volcanic eruption, or pandemic or other public health emergency.
5. Requires that the Legislature, or each house, shall choose technology for remote legislative proceedings that furthers the goals of security, the integrity and efficiency of the legislative process, and accessibility for Members who participate in proceedings remotely and members of the public who seek to view proceedings conducted by remote participation.
6. Provides that if one-fifth or more of the Members of a house are unable to attend a legislative proceeding during a state of emergency because they are deceased, disabled, or missing, a quorum of the house shall be established by a majority of its Members able to attend.
7. Provides that the Legislature may provide by statute for the temporary filling of vacant offices of Members with pro tempore members in the event that one-fifth or more of the Members of a house are deceased, disabled, or missing during a state of emergency.
8. Requires that a Member's authorization to attend and vote remotely, and to vote by proxy if applicable, shall end upon the termination of the state of emergency.
9. Requires that the Legislature by concurrent resolution, or each house by separate resolutions, shall adopt rules to implement remote legislative proceedings by a two-thirds rollcall vote before the end of the biennial legislative session in which these provisions take effect.
10. Provides that the Legislature or each house, as applicable, may amend rules that implement remote legislative proceedings by a subsequent resolution adopted by a two-thirds rollcall vote.
11. Requires that the resolution adopted by the Legislature, or each house, shall specify rules for remote attendance and voting, and shall include procedures for authenticating a Member's remote attendance and voting.
12. Provides that the resolution may permit Members to vote by proxy, in which case the resolution shall specify rules for this method of voting and shall include procedures for authenticating a Member's proxy vote.
13. Provides that a Member may remotely attend and vote in proceedings as permitted by the Member's house prior to adoption of the resolution implementing remote legislative proceedings.

COMMENTS:

Remote participation in other states: According to information from the National Conference of State Legislatures ("NCSL"), remote participation is currently allowed in Oregon and Wisconsin if emergencies exist. Oregon voters approved a constitutional amendment in 2012 that defined "catastrophic disaster" and granted additional powers to the governor and legislatures. Wisconsin's constitutional provision authorizes the legislature to "adopt such other measures that may be necessary and proper", which included a statute allowing for virtual meetings of the legislature and legislative committees when an emergency or imminent threat of one exists.

COVID-19 Response: According to the NCSL, between March and May 2020, at least 20 states, the District of Columbia, Guam, and the Virgin Islands have changed procedures to allow for remote participation as a result of the COVID-19 pandemic. ACA 25 provides California, subject to voter approval, the similar ability to allow for remote legislative proceedings.

According to the Author:

California is the fifth largest economy in the world with a population of over 40 million and growing. We have a full time Legislature which, under normal circumstances, is able to be nimble and respond by passing urgency legislation and adjust spending priorities, in real time, when conditions warrant. However, it took a worldwide pandemic for us to discover that California government is unable to continue to function, according to American notions of checks and balances during such an emergency. The legislative branch of government currently has no authority to convene remotely during an emergency where it would be unsafe for members to gather and meet in person. ACA 25 seeks to put before the voters a Constitutional amendment that would require both houses of the Legislature to adopt rules, by a two-thirds vote, which would allow for the sworn duties of the Legislature to continue, and to require such rules to provide for and maintain maximum transparency and visibility by the public. I am pleased that this is a bi-partisan effort, which seeks to safely maintain both the integrity of California government as well as public access to the proceedings.

Arguments in Support:

None received.

Arguments in Opposition:

The Institute of Governmental Advocates (IGA) opposes ACA 25 and considers this bill "unnecessary and unwise."

"ACA 25 would allow legislative business to be conducted without being physically present and/or by proxy voting during the pendency of a state of emergency declared by the President or the Governor." IGA also argues that "the definition of state of emergency is so overly broad that it would authorize the Legislature to act in the dark at almost any time it so desires. Moreover, Governors have a long history of making emergency declarations, but never rescinding such declarations once the emergency has ended."

FISCAL COMMENTS:

This bill is keyed non-fiscal by the Legislative Counsel.

VOTES:

ASM RULES: 10-0-2

YES: Cooley, Cunningham, Carrillo, Flora, Grayson, Levine, Mathis, Quirk-Silva, Ramos, Robert Rivas

ABS, ABST OR NV: Maienschein, Wicks

UPDATED:

VERSION: June 4, 2020

CONSULTANT: Michael Erke / RLS. / (916) 319-2800 FN: 0003027

Date of Hearing: June 3, 2020

ASSEMBLY COMMITTEE ON RULES

Ken Cooley, Chair

ABPCA Bill Id:ACA 25 (

Author:Mullin, Ting, Cooley, and Waldron) – As Introduced Ver:May 21, 2020

SUBJECT: State of emergency: remote legislative proceedings

SUMMARY: Temporarily permits Members of the Legislature, by two-thirds vote, to remotely attend and vote in a legislative proceeding, or to vote by proxy in a legislative proceeding if permitted by their house, during the pendency of a state of emergency declared by the President of the United States or the Governor. In limited circumstances, permits the Legislature to restrict the public’s access to a proceeding, if the restrictions are no greater than necessary to ensure the health and safety of Member, legislative employees, and members of the public. Provides that an aggrieved party shall have standing to challenge a waiver adopted pursuant to specified subparagraphs, in an action for declaratory and injunctive relief. Specifically, this bill:

1. Provides that Members of the Legislature, through the use of technology and without being physically present in the State Capitol, may attend and vote remotely in a legislative proceeding, or vote by proxy in a legislative proceeding if authorized by their house, during the pendency of a state of emergency declared by the President of the United States or the Governor.
2. Provides that the vote of a Member remotely attending a proceeding shall have the same force and effect as if the Member were physically present in the State Capitol; and, requires that a Member remotely attending a proceeding shall be included in the determination of a quorum.
3. Requires that the participation of a Member remotely attending a proceeding shall be included in the existing constitutional audiovisual recording requirement.
4. Provides that a house, or the Legislature if a proceeding involves Members from both houses, may waive the audiovisual recording requirement by a two-thirds rollcall vote if compliance is not practicable under the circumstances of the state of emergency.
5. Provides that a house, or the Legislature if a proceeding involves Members from both houses, may restrict the public’s physical access to a proceeding if such access is not practicable under the circumstances of the state of emergency or due to the manner in which the proceeding is conducted.
6. Requires that the restrictions on physical access shall be no greater than necessary to ensure the health and safety of Members, legislative employees, and members of the public.
7. Provides that an aggrieved party shall have standing to challenge the waiver of the audiovisual recording requirement or the restriction on physical access in an action for declaratory and injunctive relief.
8. Defines “state of emergency” as the existence of conditions of disaster or of extreme peril to the safety of persons and property within the State, or parts thereof, including, but not limited to, such conditions as an attack or probable or imminent attack by an enemy of the United States, fire, flood, storm, insurrection, earthquake, volcanic eruption, or pandemic or other public health emergency.
9. Requires that the Legislature, or each house, shall choose technology for remote legislative proceedings that furthers the goals of security, the integrity and efficiency of the legislative process, and accessibility for Members who participate in proceedings remotely and members of the public who seek to view proceedings conducted by remote participation.
10. Provides that if one-fifth or more of the Members of a house are unable to attend a legislative proceeding during a state of emergency because they are deceased, disabled, or missing, a quorum of the house shall be established by a majority of its Members able to attend.
11. Provides that the Legislature may provide by statute for the temporary filling of vacant offices of Members with pro tempore members in the event that one-fifth or more of the Members of a house are deceased, disabled, or missing during a state of emergency.
12. Requires that a Member’s authorization to attend and vote remotely, and to vote by proxy if applicable, shall end upon the termination of the state of emergency.
13. Requires that the Legislature by concurrent resolution, or each house by separate resolutions, shall adopt rules to implement remote legislative proceedings by a two-thirds rollcall vote before the end of the biennial legislative session in which these provisions take effect.
14. Provides that the Legislature or each house, as applicable, may amend rules that implement remote legislative proceedings by a subsequent resolution adopted by a two-thirds rollcall vote.
15. Requires that the resolution adopted by the Legislature, or each house, shall specify rules for remote attendance and voting, and shall include procedures for authenticating a Member’s remote attendance and voting.
16. Provides that the resolution may permit Members to vote by proxy, in which case the resolution shall specify rules for this method of voting and shall include procedures for authenticating a Member’s proxy vote.
17. Provides that a Member may remotely attend and vote in proceedings as permitted by the Member’s house prior to adoption of the resolution implementing remote legislative proceedings.

EXISTING LAW:

1. Provides, pursuant to Section 2 of Article IV of the California Constitution, that the Senate has a membership of 40 Senators and the Assembly has a membership of 80 Members.
2. Requires, pursuant to Section 3 of Article IV of the California Constitution, that the Legislature convene in regular session on specified dates.
3. Provides, pursuant to Section 7 of Article IV of the California Constitution, that a majority of the membership constitutes a quorum in each house, although a smaller number may recess from day to day and compel the attendance of absent members.
4. Requires, pursuant to Section 7 of Article IV of the California Constitution, that the proceedings of each house and the committees thereof shall be open and public; and, recognizes the right of the public to attend, record, and broadcast those proceedings.
5. Requires, pursuant to Section 7 of Article IV of the California Constitution, that the Legislature make audiovisual recordings of all open and public proceedings, and make those recordings available to the public within 24 hours after the proceedings.
6. Authorizes, pursuant to Section 21 of Article IV of the California Constitution, the Legislature to provide for the convening of the Legislature to meet the needs resulting from war-caused or enemy-caused disaster in California, including filling the offices of members of the Legislature should at least one fifth of the membership of either house be killed, missing, or disabled, until they are able to perform their duties or successors are elected.

FISCAL EFFECT: ACA 25 is keyed non-fiscal.

COMMENTS:

1. Purpose: In support of ACA 25, the author states:

California is the fifth largest economy in the world with a population of over 40 million and growing. We have a full time Legislature which, under normal circumstances, is able to be nimble and respond by passing urgency legislation and adjust spending priorities, in real time, when conditions warrant. However, it took a worldwide pandemic for us to discover that California government is unable to continue to function during such an emergency. The legislative branch of government has no authority to convene remotely during an emergency where it would be unsafe for members to gather and meet in person. ACA 25 seeks to put before the voters a Constitutional amendment that would require both houses of the Legislature to adopt rules by a two-thirds vote that would allow for the sworn duties of the Legislature to continue and to require such rules to provide for and maintain maximum transparency and visibility by the public.

1. Remote participation in other states: According to information from the National Conference of State Legislatures (“NCSL”), remote participation is currently allowed in Oregon and Wisconsin if emergencies exist. Oregon voters approved a constitutional amendment in 2012 that defined “catastrophic disaster” and granted additional powers to the governor and legislatures. Wisconsin’s constitutional provision authorizes the legislature to “adopt such other measures that may be necessary and proper”, which included a statute allowing for virtual meetings of the legislature and legislative committees when an emergency or imminent threat of one exists.
2. Arguments in Opposition: The Institute of Governmental Advocates (IGA) opposes ACA 25 as “unnecessary and unwise” and argues that “ACA 25 would allow the Legislature to dispense with the open and public meeting requirements at any time during the pendency of a state of emergency. The definition of state of emergency is so overly broad that it would authorize the Legislature to act in the dark at almost any time it so desires. Moreover, Governors have a long history of making emergency declarations, but never rescinding such declarations once the emergency has ended.”

The proponents of the California Legislature Transparency Act (“CLTA”), Charles T. Munger, Jr. and Sam Blakeslee, argue that “ACA 25 guts the provisions on transparency in the California Legislature that the voters enacted by passing Proposition 54. When we wrote Proposition 54 we included the right of the public to record the proceedings of the legislature in the public’s right to attend. ACA 25 removes the public’s right to attend, and therefore any ability for a member of the public to record what happens in a public proceeding of the legislature that members of the Legislature would prefer there be no awkward, indisputable, and telling evidence of.”

1. COVID-19 Response: According to the NCSL, between March and May 2020, at least 20 states, the District of Columbia, Guam, and the Virgin Islands have changed procedures to allow for remote participation as a result of the COVID-19 pandemic. ACA 25 provides California, subject to voter approval, the similar ability to allow for remote legislative proceedings.

REGISTERED SUPPORT / OPPOSITION:

Support

None received

Opposition

Charles T. Munger, Jr. and Sam Blakeslee (CLTA Proponents)

Institute of Governmental Advocates

Analysis Prepared by: Michael Erke / RLS. / (916) 319-2800