Understanding California Legislative History and Intent

CA-legislatureAttorneys, lobbyists, legislative staff and others examining California statutes should understand the basics of legislative history and intent research. Unfortunately for attorneys, the subject of legislative intent is not a particularly well covered aspect of the typical law school curriculum where heavy emphasis on the case method of studying law tends to restrict the discussion of legislative purpose to what the courts say on the subject.

However, because California courts have a long tradition of relying upon bill analyses and other evidence of legislative history in the same manner as they do case law – to clarify the meaning of a statute and properly apply the Legislature’s intent – practitioners would do well to know how to discover and apply the Legislature’s intent with respect to the statutes that at are issue in their cases.

For others, such as lobbyists, staff or the media, the focus is typically upon the proposed solution contained in a particular piece of legislation, and not upon the accompanying expressions of legislative intent. However, both are important. At minimum, it is a good idea to confirm one’s understanding of a proposed legislative solution with the statements of legislative intent from the bill’s legislative history. Here are at least three reasons why:

(1)  Our codes are rife with ambiguities that the courts will look to the legislative history to clarify.

(2) The courts will overlook a statute’s plain reading if it collides with evidence of the Legislature’s actual intent or to avoid an absurd application.

(3) Courts will also look to legislative history to confirm their own plain reading of a statute.

Both attorneys and Sacramento Capitol watchers would do well to understand that evidence of California legislative history and intent serves as an important aid for interpreting statutes and understanding what was intended by the Legislature in enacting a particular new law or amending an existing law.

Sir Francis Bacon is attributed with the statement “knowledge is power.” Applying that wisdom here, lobbyists and others should be well versed in the legislative history and intent of the code sections that their clients have hired them to “watch” and or/amend. Attorneys should utilize a well-established area of legal research that can shed light on the meaning of statutory terms at issue. And solid news reporting should include relevant aspects of the story surrounding how and why the bill of interest was passed.

In California, the primacy of legislative intent has long been established by both statute and case law. For example, Code of Civil Procedure Section 1859 (enacted in 1872) provides this mandate to the courts: “In the construction of a statute, the intention of the Legislature … is to be pursued, if possible.” Also, the judicial notice statutes identify admissible legislative history materials in Evidence Code Section 452(c). The cases cited under those sections identify various records with which the courts have a high comfort level.

In general, evidence of legislative intent can be derived from two primary sources: An intrinsic analysis of the statute and its surrounding statutory context according to standard principles of statutory construction, and the use of extrinsic aids to reconstruct the legislative history of a statute.

The wider historical circumstances surrounding the adoption of a statute can yield extrinsic evidence of legislative intent that is outside the statute itself, such as relevant historical background, the chronology of events and the presumption that the Legislature is aware of prior law. Again, such evidence may even contradict any so-called “plain reading” of the statute which contradicts persuasive, extrinsic evidence of legislative intent.

In properly researching legislative history and intent, interested persons should ask the following questions to guide their efforts:

  • What is the plain meaning” of the language in the statute? To what extent is the meaning self-evident?
  • Why was the statute adopted? What needs prompted it? What problem or evil was the Legislature trying to correct?
  • What happened in the Legislature during the process of adoption? What is the statute’s legislative history?
  • What was the law prior to the adoption of the statute?
  • What has happened since the statute was created? What has been the response of the courts, the agency charged with administering the statute, the legislature, the public, scholars, etc.?

The California State Archives has a vast collection of original legislative papers that can be accessed by source and session year (e.g., authors’ files, committee and study files, Governor’s Chaptered Bill Files, party caucus files, Senate Floor analyses files, agency files, Law Revision Commission Study Files). Interested persons can phone in research requests to the State Archives at (916) 653-2246, but be prepared to wait as they often have backlogs. “Walk-ins” receive priority treatment and the $.25 per page cost must be paid in advance.

In addition, a wide variety of state legislative offices have insightful materials (i.e., legislator offices, committee offices, partisan offices, floor analysis offices), especially when it comes to more recent legislation, as well as agency analyses and bill files. Access to records held by these offices varies widely depending on the personalities involved and their willingness to make their files available to members of the public. The Legislative Open Records Act, Gov’t Code Sections 9070, et seq. assures public access as specified.

Finally, there are numerous sources to help determine the legislative history and intent of a bill’s provisions such as:

  • The Legislature’s own online databases. They provide committee and floor analyses, bill versions, the final calendars, votes and governor’s vetoes, past session laws, journals, etc. It is not recommended that you rely upon the minimal collection of legislative history materials that Westlaw provides. In the main, it merely provides materials that you can obtain for free from the Legislature’s websites.
  • Previous related, failed legislation. The history of predecessor failed bills can be considered relevant when the legislative effort spans multiple sessions.
  • Interim hearing study and/or transcript and related files. Excerpts from testimony at public legislative hearings which preceded the enactment of a statute may be of some relevance in ascertaining legislative intent.
  • Other formal studies and/or recommendations, such as those published by the California Law Revision Commission or a state agency.
  • All versions of the bill, as introduced, amended, enrolled and chaptered along with Legislative Counsel’s Digest on the face of the bills. Always note when your language of interest came in and relevant amendments.
  • Legislative Journal entries addressing substantive matters. Letters of intent by the author, committee reports, and similar information contained in the Journals.
  • Bill Background Worksheets, which are requested by the committee and filled out by the author’s office, sometimes with attachments.
  • Policy and fiscal committee analyses (both partisan and nonpartisan versions).
  • Department of Finance fiscal reports.
  • Floor analyses for third reading (both partisan and nonpartisan versions).
  • Statements by the author for committee and floor purposes.
  • The legislative author’s letter to the governor. Note that the courts can be more friendly toward such letter if they cast light on the history of a measure and are a reiteration of legislative discussion and events, and not merely as an expression of personal opinion.
  • Statements by proponents and opponents, such as letters, testimony, position papers, etc.
  • Analyses by state agencies.
  • Opinions by the Legislative Counsel and the Attorney General.
  • Enrolled Bill Reports to the governor from various state entities, such as the Legislative Counsel, agencies and departments and the governor’s staff.
  • Contemporaneous, unpassed legislation may be a significant indicator of the intent underlying legislation passed during the same session.
  • Online research manuals can be helpful. For example, Legislative Research & Intent LLC, which is a commercial provider of legislative history research, supplies numerous complimentary research assistance and resources at www.lrihistory.com.

It is important for attorneys and others to possess a basic understanding of what legislative history research consists of and where to look for insights into what the Legislature intended when it enacted a new law or amended an existing statute. An insistence upon going beyond simply reading the statute allows one to consider valuable extrinsic evidence of what was intended by the Legislature in the adoption of the particular legislation of interest.

Carolina Rose is the President and Founder of Legislative Research & Intent, LLC which has provided legislative history research since 1983, and provides related expert witness services. Chris Micheli is an attorney and lobbyist with the firm of Aprea & Micheli, Inc. For more information contact carolina.rose@lrihistory.com or cmicheli@apreamicheli.com

The perfect security of person and property

Regulation and taxation impose constant government assaults on Americans’ property rights, eroding their ability to make choices for themselves. James Fenimore Cooper put it, “There is getting to be so much public right, that private right is overshadowed and lost … danger exists that the ends of liberty will be forgotten.”

jean-baptiste-sayGiven how much private property rights now overshadowed, we should return to first principles about those essential underpinnings of voluntary relationships. One person worth reconsidering is Jean Baptiste Say, particularly on the 250th anniversary of his January 5 birth.

J.B. Say was the foremost French political economist in the early 1800s. An elaborator on Adam Smith’s Wealth of Nations and a vigorous defender of economic freedom, which arises from the defense of private property rights, his Treatise on Political Economy was used as a textbook in the United States.

Say’s chapter, “Of the right of property,” remains among the wisest, though widely violated, insights into property rights available today.

The right of property … [is] the most powerful of all encouragements to the multiplication of wealth.

The legal inviolability of property is obviously a mere mockery … where possession is rendered perpetually insecure, by the intricacy of legislative enactments, and the subtleties of technical nicety. Nor can property be said to exist, where it is not matter of reality as well as of right. Then, and then only, can the sources of production … attain their utmost degree of fecundity.

Who will … deny, that the certainty of enjoying the fruits of one’s land, capital and labor, is the most powerful inducement to render them productive? Or who is dull enough to doubt, that no one knows so well as the proprietor how to make the best use of his property? Yet how often in practice is that inviolability of property disregarded … upon the most flimsy pretexts?

The property a man has in his own industry is violated, whenever he is forbidden the free exercise of his faculties and talents, except insomuch as they would interfere with the rights of third parties.

Sacred as the property in the faculties of industry is, it is constantly infringed upon. …What robber or despoiler could commit a more atrocious act of invasion upon the public security?

Nothing short of the necessity of defending [social] order from manifest danger can authorize these or similar violations of individual right.

Taxation … must be proved indispensable to the existence of social order; every step it takes beyond these limits is an actual spoliation; for taxation, even where levied by national consent, is a violation of property.

The right of property implies the free disposition of one’s own.

When public authority is not itself a spoliator, it procures to the nation the greatest of all blessings, protection from spoliation by others. Without this protection of each individual by the united force of the whole community, it is impossible to conceive any considerable development of the productive powers of man, of land, and of capital.

The poor man … is equally interested with the rich in upholding the inviolability of property. His personal services would not be available, without the aid of accumulations previously made and protected. Every obstruction to, or dissipation of these accumulations, is a material injury to his means of gaining a livelihood.

Civilized communities pursue and punish every invasion of property as a crime … the happy effects, resulting from the right of property, are more striking in proportion as that right is well guarded by political institutions.

As Larry Sechrest noted, J.B. Say was “precise and yet as simple as possible, so that any literate, reasonably intelligent person can comprehend his meaning.” However, Americans have been governed by violators of those principles, because “agents of public authority … can enforce error and absurdity at the point of the bayonet.” And the results have been far worse than if we had followed his understanding. In Say’s words:

Of all the means by which a government can stimulate production, there is none so powerful as the perfect security of person and property, especially from the aggressions of arbitrary power. This security is itself a source of public prosperity.

Gary M. Galles is a Professor of Economics at Pepperdine University, a Research Fellow at the Independent Institute, an Adjunct Scholar at the Ludwig von Mises Institute and a member of the Foundation for Economic Education Faculty Network. His books include Lines of Liberty (2016), Faulty Premises, Faulty Policies (2014) and Apostle of Peace (2013).

State Agencies and Their Role in Public Policy

Photo courtesy Franco Folini, flickr

Photo courtesy Franco Folini, flickr

California’s agencies, as well as the departments, boards and commissions under them, engage in a tremendous amount of public policy making through both the rulemaking process and their interpretation and enforcement of existing statutes and regulations. These agencies are the ones who generally run the day-to-day operations of state government and implement the statutes adopted by the Legislature and signed by the governor.

With over 200 of these entities in California government, these state agencies influence policy by adopting regulations and implementing statutes. Moreover, they engage in policy making when these agencies issue guidelines, legal opinions, management memos, and other written documents that interpret the laws and implementing regulations.

Practitioners should be aware of the California Constitution Article III, Section 3.5. It provides that an administrative agency has no power to declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made such a determination. And agencies have no power to declare a statute unconstitutional.

This, for instance, when a Los Angeles Superior Court recently held that various teacher tenure and dismissal statutes were unconstitutional, local school districts, the Superintendent of Public Instruction, and the Department of Education were without authority to implement this decision. Without an appellate court ruling on the matter of constitutionality, local and state agencies must continue to abide by the challenged law.

When dealing with a given state agency, it is important first of all to know whether it is a plural executive, independent, or governor’s line authority agency. Generally speaking, the governor has less control over “plural executive” and “independent” agencies. These separate agencies are generally able to manage their daily affairs and conduct rulemaking without supervision or oversight from the governor. On the other hand, the governor has considerable authority to manage line authority agencies, including the ability to direct or restrict their rulemaking activities.

It is also important to know that state agencies within the executive branch of government consist of three major varieties:

  • Plural executive agencies” that are under the direction of an official elected on a statewide basis. For example, the Attorney General heads the Department of Justice, the Superintendent of Public Instruction heads the Department of Education, and the Insurance Commissioner heads the Department of Insurance. There are nine of these agencies in California headed by constitutional officers that are elected by statewide voters every four years.
  • “Independent agencies” that operate outside of the line control of the governor by virtue of constitutional provision, statute or common law. Some of the major independent agencies and their governing bodies include the University of California, governed by the Board of Regents; the California State University, governed by the Board of Trustees; the California Community Colleges, governed by the Board of Governors; the Public Utilities Commission, governed by the Public Utilities Commission; and the California State Lottery, governed by the Lottery Commission.
  • “Line agencies” include all the other agencies and departments within the executive branch that are under the line control and authority of the governor. Most state agencies and departments (more than 90 percent of them) within the executive branch of government are of this type. Many of these line authority agencies and departments have been organized into a hierarchy of major agencies or departments. The heads of these major agencies and departments sit on the governor’s cabinet.

When dealing with agencies that are under the line authority of the governor, it is important to know where they fit in terms of the organizational hierarchy. Departments or agencies that are under larger agencies or departments are subject to supervision and coordination by those agencies or departments. Their interactions with the governor also tend to be limited.

However, when it comes to rulemaking (i.e., the adoption of regulations under the state’s Administrative Procedures Act), the supervising or coordinating agencies usually allow significant latitude to the agency or department that is directed by statute to adopt such regulations.

Generally speaking, the authority of state agencies to adopt policy (by their rulemaking ability) is defined and restricted by statute. State statutes usually prescribe each agency’s authority to adopt policy; and, it is an established principle of administrative law that an agency cannot go beyond its legally-prescribed authority to regulate.

On the other hand, many statutes confer broad powers to some state agencies regarding matters that directly affect the general public (such as the Department of Motor Vehicles, the Air Resources Board, and the Department of Fair Employment and Housing). The regulations and administrative practices of these agencies affect millions of Californians in their daily lives.

Interested parties have significant access to the rulemaking activities of state agencies by virtue of the California Administrative Procedure Act (APA). In addition, every state agency is required to annually adopt a “rulemaking calendar” (Government Code Section 11017.6) that describes regulatory actions the agency anticipates taking during the calendar year. The APA is overseen by the Office of Administrative Law (OAL).

The OAL website includes helpful information for interested parties to track pending and adopted regulations. OAL also produces a guidebook on the rulemaking process that is of value to those who are getting acquainted with the APA process or those participating in the rulemaking process for the first time. In either instance, it is important to understand the rulemaking process and the role of state agencies.

A list of state agencies that have adopted regulations can be found on OAL’s website, which also provides direct access to the California Code of Regulations (CCR), which is organized under various subject matter titles. The following are the 28 titles comprising the CCR:

Title 1 – General Provisions

Title 2 – Administration

Title 3 – Food and Agriculture

Title 4 – Business Regulations

Title 5 – Education

Title 6 – Governor’s Regulations (currently has no regulations)

Title 7 – Harbors and Navigation

Title 8 – Industrial Relations

Title 9 – Rehabilitative and Developmental Services

Title 10 – Investment

Title 11 – Law

Title 12 – Military and Veterans Affairs

Title 13 – Motor Vehicles

Title 14 – Natural Resources

Title 15 – Crime Prevention and Corrections

Title 16 – Professional and Vocational Regulations

Title 17 – Public Health

Title 18 – Public Revenues

Title 19 – Public Safety

Title 20 – Public Utilities and Energy

Title 21 – Public Works

Title 22 – Social Security

Title 23 – Waters

Title 24 – Building Standards Code

Title 25 – Housing and Community Development

Title 26 – Toxics

Title 27 – Environmental Protection

Title 28 – Managed Health Care

An interesting phenomenon is that businesses cannot rely in good faith upon the written determinations issued by state agencies. For example, even if a business asks for and receives written guidance from a state agency as to how a law is interpreted, the business does not have any legal protection against a liability suit. This is an instance where the state agency’s written interpretation is not given any legal weight by a reviewing court. The courts can consider these determinations, but they do not provide an affirmative defense to those receiving them.

In other words, despite being charged with interpreting, implementing and enforcing California statutes and regulations, individuals and businesses that obtain written guidance from state agencies have no protection from legal liability even if they follow that guidance. However, there are a few agencies that provide limited protections.  For example, the Fair Political Practices Commission has advice letters to requesters that provide immunity from liability. The Franchise Tax Board and the Board of Equalization each have Chief Counsel Rulings that provide protection to taxpayers.

State agencies play a key role in public policy development in California through their rulemaking activities, as well as their interpretation and enforcement of statutes and regulations. There are both public (through interested parties) and private (administration with line control agencies) influences on these agencies in their policy role.

Thomas Nussbaum is the former Chancellor of the California Community Colleges.  Chris Micheli is a lobbyist with Aprea & Micheli, Inc. Both are Adjunct Professors of Law at McGeorge School of Law.

Violating the Constitution that created it

The political left’s responses to Donald Trump’s surprise Electoral College victory has led to many proposed “improvements” in that institution, ironically illustrating one of the main issues determining the outcome — what philosophy would guide judicial appointments.

Trump indicated that he would appoint justices that would honor the Constitution as the supreme law of the land. That would comport with our founders, expressed in Federalist 78, that “It will be the duty of the judicial tribunals … to guard the Constitution and the rights of individuals.” That was at odds with Hillary Clinton’s intent to appoint “living Constitution” jurists, who prefer subsequent judicial interpretations they like over the Constitution itself, whenever they conflict, effectively re-writing the Constitution.

So left-leaning legal scholars have illustrated their preferred means of Constitutional redefinition to produce their desired results via Electoral College “reform” proposals.

Kenneth Jost, author of the Supreme Court Yearbook, argues, “The electoral college is enshrined in the Constitution, but that doesn’t make it constitutional.” He arrives at that internally inconsistent conclusion because “The Supreme Court established the principle — ‘one person, one vote’ — in 1964.” But that is not in the Constitution. It is a much later court invention, now being used retroactively to define part of the Constitution unconstitutional. The fact that our founders did not find that so when they wrote and adopted the Constitution is simply ignored.

University of California, Irvine, Law School Dean Erwin Chemerinsky, a leading liberal Constitutional interpreter, takes the same theme further. He argues that “the text of the Constitution is modified by its amendments,” so the Electoral College allocation of votes should be declared unconstitutional as violating the constitutional amendments [citing the 5th Amendment] that guarantee equal protection of the law.” This, despite the fact that adopters of the Bill of Rights in 1791 clearly found no unconstitutionality in the Electoral College from the 5th Amendment. Neither were earlier examples of popular vote winners who lost in the Electoral College asserted to be unconstitutional. Chemerinsky, as Jost, builds his case not on the Constitution, but upon “The Supreme Court long has held,” followed by some ruling that twists the Constitution and can now be interpreted as at odds with the Electoral College, plus the claim that the redefined constitutional meaning should now trump the Constitution.

Neither of these prominent challenges to the Electoral College relies on the Constitution. Arguments are instead grounded in previous “The Supreme Court has held” rulings that deviated from consistency with the clearly understood original meaning of the Constitution. This is, in fact, such a common approach in “living Constitution” jurisprudence that scholars have even compiled “worst of” lists, such as Robert Levy and William Mellor’s The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom.

Should America be faithful to the Constitution, and the sharply limited federal government of enumerated powers it created to protect our freedoms from abuse at its hands, as the earlier, controlling precedent, or should we accept precedents that have already warped it almost beyond recognition? If the Constitution’s meaning is to be so easily changed (but only when the left finds it amenable to their ends) that even “emanations from penumbras” around other rights can effectively rewrite it, why did our founders spell out such a difficult process for changing it? And why should we respect precedents from 1964 or others years long after America’s establishment, on the basis that the Constitution must be upheld, when those precedents distorted it rather than upheld it? Surely that Alice in Wonderland approach to constitutional meaning is too weak a reed to throw out the Electoral College as violating the Constitution that created it.

Gary M. Galles is a Professor of Economics at Pepperdine University, a Research Fellow at the Independent Institute, an Adjunct Scholar at the Ludwig von Mises Institute and a member of the Foundation for Economic Education Faculty Network. His books include Lines of Liberty (2016), Faulty Premises, Faulty Policies (2014) and Apostle of Peace (2013).

Remember the infamy of December 7, 1683

algernon-sidneyDecember 7 has “lived in infamy” since Pearl Harbor. But that date was already infamous before America was a country. In 1683, Algernon Sydney, who opposed Charles II for overstepping his powers, was executed for treason on that date, after a trial blatantly violating his rights (so blatantly that Parliament overturned his conviction in 1689). The key evidence was an unpublished manuscript arguing that the king was not above the law, which became “Discourses Concerning Government” 15 years later.

Sydney died for asserting a right of revolution to defend citizens against a king exceeding his legal authority. That radical claim later helped inspire the American Revolution, because, according to Thomas West, “His death as a martyr to liberty inspired [colonists] with a model in their own risky enterprise against the force of English arms.” On December 7, Sydney’s revolutionary words for liberty against government abuse merits remembering as much as a foreign attack on American soil.

Our rights and liberties are innate, inherent … from God and nature, not from Kings. … He who enjoys [liberty] cannot be deprived of it, unless by his own consent, or by force … in relation to my house, land, or estate; I may do what I please with them, if I bring no damage upon others.

Our natural liberty … is of so great importance that from thence only can we know whether we are freemen or slaves.

The liberty of one man cannot be limited or diminished by one or any number of men, and none can give away the right of another … ambition … cannot give a right to any over the liberties of a whole nation. Those who are so set up … are rather to be accounted robbers and pirates than magistrates.

Government[s] … degenerate into a most unjust and despicable tyranny, so soon as the supreme lord begins to prefer his own interest … before the good of his subjects … such an extreme deviation from the end of their institution annuls it; and the wound thereby given to the natural and original rights of those nations cannot be cured, unless they resume the liberties of which they have been deprived.

Prerogative is instituted only for the preservation of liberty … governments … in which every man’s liberty is least restrained … would be the most just, rational and natural.

The supreme law … [is] the preservation of their liberties, goods, lands and lives … all laws must be subservient and subordinate to it … if there be no other law … than the will of [government], there is no such thing as liberty. Property is also an appendage to liberty; and ‘tis … impossible for a man to have a right to lands or goods, if he has no liberty … overthrown by those who … ought with the utmost industry and vigor to have defended it.

Is it possible that any one man can make himself lord of a people … to whom God had given the liberty of governing themselves, by any other means than violence or fraud … the most outrageous injury that can be done … we are free-men … no man has a power over us, which is not given … the ends for which they are given … can be no other than to defend us from all manner of arbitrary power.

Shall it be lawful for [rulers] to usurp a power over the liberty of others, and shall it not be lawful for an injured people to resume their own? … The people … cannot but have a right to preserve their liberty … Those who defend, or endeavor to recover their violated liberties … act vigorously in a cause that God does evidently patronize.

Algernon Sydney defended “the natural, universal liberty of mankind.” He helped inspire the American Revolution, because “a people from all ages in love with liberty and desirous to maintain their own privileges could never be brought to resign them.” However, it is unclear that Americans retain such beliefs, judging by they extent our rights have been resigned to government overstepping. We should revisit his understanding and commitment, if we are to reclaim our heritage of liberty.

Gary M. Galles is a Professor of Economics at Pepperdine University, a Research Fellow at the Independent Institute, and an Adjunct Scholar at the Ludwig von Mises Institute and a member of the Foundation for Economic Education Faculty Network. His books include Lines of Liberty (2016), Faulty Premises, Faulty Policies (2014) and Apostle of Peace (2013).

How Does Policy Analysis Work in the California Legislature?

 

CA-legislatureHave you ever wondered how the California Legislature goes about analyzing the thousands of proposals that are introduced as bills? And, how does the Legislature’s process for bill analysis differ from policy analysis methodologies used almost everywhere else, including academia and the private sector? The answers to these questions provide some interesting insights into the strengths and weaknesses of California’s legislative process.

For anyone who has seen a bill from the California Legislature in print, one of the first items addressed is a section entitled, “Legislative Counsel’s Digest.” Is this an analysis of the bill? Not really. Instead, the purpose of the Legislative Counsel’s Digest is to succinctly describe current law and then summarize the changes that are proposed in the legislation.  The Digest thus describes how the bill proposes to change existing law. Otherwise, the Digest is strictly neutral; it neither evaluates the pros and cons of the proposal nor makes any recommendations.

So, who does the analysis of bills and where do you go to find them? Quite simply, legislative proposals in California are analyzed by the staff of the committees to which they are referred and by the staff of the respective houses prior to a proposal coming up for a floor vote. Thus, a typical bill that makes it into law is analyzed six times: by a policy committee and a fiscal committee in each house and a floor analysis in each house. These analyses are accessible via the California Legislative Information website maintained by the Legislative Counsel.

If you pulled up bill analyses from several different committees, you would notice there is no set process or methodology being applied. Instead, you would note that there seems to be some common elements addressed in most of the analyses, but that each committee and each floor applies their own methodologies. Some policy committees in the Assembly and Senate have well deserved reputations for extensive analyses that include in-depth discussion of existing law and the proposed changes contained in the bill.

And they reflect the intent of the author and explain in detail the arguments for and against the proposed law changes. There are other committees whose analyses are often limited, merely reciting some of the language in the proposed legislation without much discussion that would provide valuable insights for those trying to understand or learn the intent behind changes in the law.

So, there is no fixed policy analysis methodology in the Legislature and the quality of analysis can vary from committee to committee, floor to floor, or even bill to bill. Nonetheless, what are the common elements that are covered in most legislative bill analyses and how do these analyses differ from policy analysis methodologies taught in academia and used almost everywhere else?

When we examine the bill analysis methodologies used in the California Legislature (and most other legislative bodies), we find the policy analysis is focused on the evaluation of a specific proposal. In other words, rather than beginning the analysis with a definition of the problem, the analysis emanates from a proposed solution (i.e., a bill).  This approach is understandable given that most legislative processes begin with the introduction of a bill that contains the text of a specific solution to try and address a public policy problem.

Typical elements addressed in a bill analysis thus include:

  • a summary of current law and a description of how the proposal would change existing law
  • a summary of the purpose of the bill
  • arguments in opposition and support
  • current or prior California legislative proposals on the same subject and the disposition of those proposals
  • what other states have done
  • results of research studies
  • fiscal effects
  • a listing of parties or organizations that have registered official support or opposition

While legislative bill analysis methodologies typically focus on the evaluation of a specific proposal, policy analysis methodologies taught in academia and used almost everywhere else tend to start from a definition of the problem.  Once the problem is defined, the analysis turns to identifying and evaluating the various alternatives for addressing the problem. The policy analysis is a rigorous, multi-step process that involves a thorough analysis of the various alternative means of addressing the problem.

While a legislative bill analysis of a specific solution can involve extensive research and considerable evaluation, there are pitfalls to this approach. Given the nature of the legislative process, the tendency is to become preoccupied with the solution and pay less attention to identifying and analyzing the various solutions to an underlying problem.  Authors of legislation are understandably inclined to focus on building the case for the particular solution for which they are advocating. All too often they tend to overlook the underlying steps of defining the problem, identifying alternatives, selecting criteria, and projecting outcomes.

And, all too often, the staff who analyze legislative measures also overlook these underlying steps. As a consequence, legislatures often get stuck in a contest of wills over specific solutions instead of first attempting to define and agree upon the underlying problem. Without a clear understanding and agreement on the problem they are attempting to address, legislators deprive themselves of a key element in reaching consensus.

There are some practical realities that make if difficult for legislative bodies to apply traditional policy analysis methodologies. With nearly 2,500 bills introduced each year in California (and upwards of 8,000 amendments made to these bills) it is an unrealistic expectation that legislative staff would have the time to engage in such thorough analyses on every bill and every amendment. On the other hand, while a thorough analysis of each bill and each amendment might be impossible, this does not mean that traditional policy analysis cannot be infused into at least a portion of the legislative process.

Decisions about how and when to infuse traditional policy analysis methodology into the legislative process are appropriately made by the leadership of the respective houses. One possibility would be to hold authors of legislation accountable to conduct and produce a formal policy analysis on each piece of legislation and major amendment being proposed. These formal analyses would accompany the proposal, thereby providing committee and floor staff something to review and critique. Another possibility would be for committee chairs and floor leaders to have discretion as to the measures needing a full scale policy analysis prior to a vote.

Regardless of the method chosen, we believe that additional time and effort needs to be spent on analyzing both the problems and the possible solutions before legislation is considered, let alone adopted. In the rush “to do something,” the Legislature often needs to return to the policy issue because the prior legislation did not accomplish what it had intended. It was either inadequate to effectively solve the problem being addressed or it was poorly crafted and needs to be revisited. In either instance, the policy analysis was probably limited and perhaps a more comprehensive analysis would have resulted in a better policy solution.

In summary, while most legislative bodies use policy analysis methodologies that focus on evaluating specific solutions, it is imperative that the underlying policy analysis steps not be overlooked. Even though legislative bodies may be concentrating on the evaluation of specific solutions, they cannot properly do so unless they have the discipline to define the problem, identify and evaluate the various alternatives, and formulate the best solution. The legislative process would be better served in the long-term by providing greater policy analysis of both the problems and the solutions being debated.

Thomas Nussbaum is the former Chancellor of the California Community Colleges.  Chris Micheli is a lobbyist with Aprea & Micheli, Inc. Both are Adjunct Professors of Law at McGeorge School of Law.

Allowing people their natural freedom through free trade

 

The just-completed election has been analyzed in terms of people who felt politically ignored, demeaned or attacked. Donald Trump’s campaign clearly claimed he would put their concerns first. Unfortunately, the protectionist “solutions” he has proposed cannot fix them.

Protectionism is among the most damaging things a country can do to itself. Henry George described it as doing to ourselves what enemies try to do to us in wartime — blockade our trade with others. It uses government coercion to impoverish its own citizens by undermining the massive gains in production, and therefore consumption, specialization and trade would create for them. Because restrictions on willing trading partners’ offerings reduce the real purchasing power of incomes, Auberon Herbert described it as a war of the protected on the unprotected.

john-brightThat is why the Trump victory aftermath is a great time to remember one of history’s most influential free traders — John Bright, born November 16. Along with Richard Cobden, he led the campaign which ended England’s protectionist Corn Laws in 1846, inaugurating one of world history’s freest trade eras, accompanied by increased prosperity and peace. It is worth reconsidering Bright’s case for international economic freedom — the ability to choose our own voluntary relationships with people from other countries:

I care for the condition of the people among whom I live … unless the beauty of your legislation and the excellence of your statesmanship are impressed there on the feelings and condition of the people … you have yet to learn the duties of government.

[I wish] to see my countrymen free, and able to enjoy the fruits of their labor.

To be a man … he must have food, and to be a healthy man one would say that it was necessary he should have a free market for the purchase of his food. To be a working-man he must have materials with which to work, and it would seem reasonable that he should have a free market for the purchase of materials. More than that, as far as possible, he should have a free market for the sale of his materials.

Force is not a remedy.

[Trade restrictions] bring … suffering, discontent, and insubordination.

Trade should be as free as the winds.

To sell freely would be a great advantage, as to buy freely is a great advantage; but neither to buy freely nor to sell freely, as the Fair Traders recommend, would … enormously increase the injury.

Many people … think that because other countries do not allow us to send our goods into their market free of duty, therefore we should not allow them to send their goods to this market free of duty. They think two bad things are better than one.

The Corn Law [repeal] … tells … what freedom has done … and it points the way to other paths of freedom which yet lie open. …

All this has been done by merely … allowing people their natural freedom to buy and sell where they could buy and sell to the greatest advantage.

What a grand thing it is to establish our laws upon a basis of freedom and justice … [not] so unjust, so cruel to the bulk of their countrymen.

We shall reap even greater gain from our policy of Free Trade in the future than we have reaped in the past.

John Bright led the Free Trade movement in 19th century England, because, in Richard Barry O’Brien’s words, “Bright loved justice and freedom, and had faith in the people.” According to Nicholas Elliott, “John Bright did more than anyone else to bring about the great advances for liberty in nineteenth-century Britain,” because “he helped to establish free trade as a popular principle which no politician would dare to interfere with for years to come.”

John Bright saw that international as well as domestic government restrictions on voluntary arrangements were unjustified applications of government coercion that harmed a country’s citizens. Unfortunately, our president-elect is far less concerned with liberty, and the benefits it provides for all, in our international relations. We would gain from re-learning the Bright idea that “allowing people their natural freedom” is a benefit and not a burden.

Gary M. Galles is a Professor of Economics at Pepperdine University, an Adjunct Scholar at the Ludwig von Mises Institute, a Research Fellow at the Independent Institute and a member of the Foundation for Economic Education Faculty Network. His books include Apostle of Peace (2013), Faulty Premises, Faulty Policies (2014), and Lines of Liberty (2016).

San Francisco, AIDS ground-zero, Votes for No Condoms

It is almost unfathomable that San Franciscans voted by 68.5% against the health requirements for the pornography industry in Proposition 60 that would require the wearing of condoms.  Prop. 60, which was heavily funded by the AIDS Foundation and AIDs prevention activists, lost statewide by 54% to 46%, but the proposition won in the key southern California counties of Los Angeles (where most pornographic films are produced and where the most highly affected workers usually reside), San Bernardino and Riverside.  Had Bay Area liberals, and especially San Franciscans, matched the vote percentages of those in the three southern California counties, Proposition 60 would have passed.

The self-indulgent irony in San Francisco’s vote is that it has one of the largest HIV-positive populations in the whole country with an estimated 16,000 people living with HIV in The City, according the the SF AIDS Foundation.  http://www.sfaf.org/hiv-info/statistics/?referrer=https://www.google.com/  Gay and bi men, who are highly represented in the diverse San Francisco community, represent 82% of all new HIV cases in San Francisco annually.  Yet the voters of San Francisco decided, almost overwhelmingly, that requiring use of condoms for adult film actors was a bad idea.

What a terrible pity.  While San Franciscans are big on voting for regulations on just about everything else in California society, they could not see a connection when it came to the ravages of disease in one of their own communities.  And as to diversity, The City gave 85% of its vote for President to Hillary Clinton, and less than 10% to the winner, Donald Trump.  Perhaps San Francisco is not so diverse, or caring, after all, judging from the election results. logo

The Antifederalists warned us; time to listen  

anti-federalistApproaching an ominous election day, Donald Kochan wrote an article urging Americans to consider the Federalist Papers’ warnings against populism and demagoguery before voting. They do have valuable insight. But the Antifederalists offer more valuable insights into our political world.

The Antifederalists opposed the U.S. Constitution as enabling an overbearing central government threatening individual liberties. With history written by the winners, they are ignored now, but, as Joseph Stromberg noted, “pretty much every dire prediction made by the Antifederalists has proven correct.”

Antifederalists thought the Constitution’s checks on federal power would be overridden by expansive interpretations of the government’s role in promoting the “general welfare” and other clauses, creating a federal government that would invent undelegated powers.

Antifederalists’ determination to protect Americans’ inalienable rights from the constitutional “loopholes” that would be created by those bent on that course led to the Bill of Rights. Some are now the last line of defense against government invasions, and under threat (e.g., the 5th Amendment’s Takings Clause), while others have already largely succumbed (e.g., the 10th Amendment).

Antifederalists did not envision all the ways their fears would come true. They didn’t anticipate that the Commerce Clause would now rationalize almost any federal action — the distortion necessary was too great for them to even imagine. They didn’t foresee how the 14th Amendment would be used to extend federal domination over states. They didn’t foresee the 16th Amendment allowing an income tax, which they would never have accepted, and the massive expansion of government, and its abuses it produced. But those changes have just made the expansion of government power and contraction of Americans’ freedom they feared worse.

Among the most important Antifederalists was Brutus — Robert Yates, a New York judge — who withdrew as a Constitutional Convention delegate because it was exceeding its instructions. His analysis of federal overreaching were particularly insightful.

Brutus asserted that courts would be beyond control “both of the people and the legislature.” Consequently, he objected that the grounds for removing judges didn’t include making rulings that exceeded their constitutional authority, leading to judicial tyranny.

Brutus argued that when constitutional grounds were absent, courts would create grounds “by their own decisions,” manipulating the meanings of vague clauses as justification. It would interpret the Constitution’s alleged “spirit,” rather than its written words. Such rulings would then effectively “have the force of law,” due to the absence of constitutional means to “correct their errors.” This constitutional failing would compound over time in a “silent and imperceptible manner,” through precedents that built on one another.

The courts’ constitutional interpretations would expand the power vested in federal government, making the courts the most dangerous branch, not “the least dangerous branch,” as Federalist 78 asserted.

Brutus predicted the adoption of “very liberal” principles of constitutional interpretation. He claimed that there had never in history been a court with such “immense powers” and so few checks upon it, making it perilous for a nation founded on consent of the governed. Given the extent to which Americans’ power to effectively withhold their consent from federal actions has been eviscerated, Brutus was right.

Brutus accurately recognized the cause (insufficient enforceable restraints on the federal government’s scope) and consequences (increasing burdens and invasions of liberty) of the expansive federal powers now surrounding us. But he was too optimistic. The federal behemoth has grown orders of magnitude larger than he could ever imagine, much less find justifiable.

The judicially-enabled tyranny Brutus and other Antifederalists feared has come to pass. What Thomas Hobbes described as our ultimate protection against a “war of all against all” — government — has become the main battlefield on which that war is now fought. The increasing magnitude of the difference between prize and punishment has made the battle for political control increasingly nasty and brutish, but horribly drawn out rather than short. And unless we learn from the Antifederalists, our politics will be a continually escalating fight over who controls the Titanic’s deck chairs as it sinks.

Gary M. Galles is a professor of economics at Pepperdine University, a research fellow at the Independent Institute, adjunct scholar at the Ludwig von Mises Institute, and member of the FEE faculty network. His books include Apostle of Peace (2013), Faulty Premises, Faulty Policies (2014) and Lines of Liberty (2016).

What you don’t know hurts more in politics than markets

There is an old expression that “what you don’t know won’t hurt you.” Unfortunately, it is not true. Further, when it comes to economic misunderstanding, it is far more likely to harm Americans in their political choices than their market choices.

thomas-sowellThomas Sowell, in Knowledge and Decisions, laid out why. In market competition:

Economic knowledge need not be articulated to the consumer, but is conveyed — summarized — in the prices and qualities of goods. The consumer may have no idea at all — or even a wrong idea — as to why one product cost less and serves his purpose better; all he needs is that end result itself. Someone must of course have the specific knowledge of how to achieve that result. What is crucial to economic competition is that better and more accurate knowledge on the part of the producer is a decisive competitive advantage, regardless of whether the consumer shares any part of the knowledge.

In political competition, however:

Political knowledge is conveyed by articulation, and its accurate transmission through political competition depends upon the preexisting stock of knowledge and understanding of the receiving citizen. … In political competition, accurate knowledge has no such decisive competitive advantage.

In other words, as long as consumers can choose which suppliers’ goods better satisfy their preferences and situations, misunderstanding the processes involved does not keep them from being well-served by market competition. In contrast, voters must understand how things will actually work to evaluate politicians’ promises.

In markets, “prices convey effective knowledge of inherent constraints.” In contrast, “ballots do not … there are no constraints on my voting for … options simultaneously desired [but] unrealizable from the outset.” To make it worse, “no small part of the political art consists in misstating options and in trying to give them the appearance of simultaneously satisfying competing claims when they cannot be satisfied in reality.” Consequently, “The competition among political groups does not therefore bring to bear more accurate knowledge, as in economic competition, but promotes exaggerated hopes and fears.”

Today, for those who believe freer trade harms people rather than creating mutual gains, promises of “cracking down” or imposing higher tariffs on foreign products appears attractive. For those who believe that they earn less because “the 1 percent” earn too much, rather than that market incomes reflect added value provided to others, punitive taxation appears attractive. For those who think various workplace amenities, such as paid leave, come out of employers’ pockets, rather than from workers’ compensation packages (once there has been time to adjust), mandating those benefits appears attractive. For those who think higher minimum wages will benefit “the poor” with few other effects, rather than helping some and hurting others, including those who lose their jobs, hours worked, on-the-job training, etc., as well as all consumers in higher prices, they appear attractive. But in each of these cases, and many others, appearances are deceiving the ill-informed.

Thomas Sowell recognized that “Perhaps the greatest achievement of market economies is in economizing on the amount of knowledge needed to produce a given economic result.” However, he also recognized “That is also their greatest political vulnerability,” which we are seeing acted out before our eyes. The public, benefitting from vast and varying market arrangements without understanding them, can be lured by siren songs of something for nothing, because they don’t see how it undermines those irreplaceable voluntary arrangements which do reliably serve them.

Gary M. Galles is a professor of economics at Pepperdine University, an adjunct scholar at the Ludwig von Mises Institute, a research associate of the Independent Institute, and a member of the FEE faculty network. His books include Apostle of Peace (2013), Faulty Premises, Faulty Policies (2014) and Lines of Liberty (2016).