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.

A Unique Role for the Legislature in the Rulemaking Process

CA-legislatureThe state of California has over 200 agencies, departments, boards and commissions that can make public policy via their authority to adopt regulations, often referred to as their rule-making authority. There is a lengthy list of state agencies that have adopted regulations which can be found on the website of California’s Office of Administrative Law. OAL’s website also provides direct access to the California Code of Regulations, which is organized under 28 subject matter titles.

There are several ways in which the Legislature can influence the rule-making activities of state executive branch agencies, primarily through the lawmaking and budgetary processes. For example, the Legislature can adopt statutory changes to expand or limit a specific state agency’s authority to adopt regulations, or the Legislature can utilize the “power of the purse strings” through the budget process to persuade a state agency’s rule-making actions. California law also provides a unique role for the Legislature to influence the quasi-legislative efforts of the executive branch. This brief article looks at that unique role.

The APA

The Administrative Procedures Act requires procedures for rule-making and administrative hearings by these numerous state agencies and departments. The APA is found at Chapters 3.5, 4 and 5 [commencing with Section 11340] of Part 1 of Division 3 of Title 2 of the California Government Code. California’s APA is based largely on the federal APA.

Generally speaking, the authority of state agencies and departments to adopt policy (through rule-making) is defined and restricted by statute. It is an established principle of administrative law that an agency cannot exceed its legally-prescribed authority to regulate. On the other hand, some statutes confer broad powers to selective state agencies regarding matters that directly affect the public generally (e.g., Department of Motor Vehicles, Air Resources Board, and Department of Fair Employment and Housing).

Legislative Review of Regulations

Under the Joint Rules of the California Legislature, the Joint Rules Committee, as well as the respective Rules Committees of both the Assembly and Senate, may approve any request for a priority review of a regulation pursuant to Section 11349.7 of the Government Code. If such a request is approved, the Joint Rules Committee must submit any approved requests to the Office of Administrative Law.

In addition, under the Joint Rules, any member of the Senate may request the Senate Committee on Rules, and any member of the Assembly may request the Speaker of the Assembly to direct a standing policy committee of their respective houses or the Office of Research of his or her respective house to study any proposed or existing regulation or group of related regulations.

Upon receipt of such a study request, the Senate Committee on Rules or the Speaker of the Assembly determines whether a study will be made of the regulation(s). In reviewing the request, the Senate Committee on Rules or the Speaker of the Assembly must determine (1) the cost of making the study; (2) the potential public benefit to be derived from the study; and, (3) the scope of the study.

Under the Joint Rules, the study may consider, among other relevant issues, whether the proposed or existing regulation:

(1) Exceeds the agency’s statutory authority.

(2) Fails to conform to the legislative intent of the enabling statute.

(3) Contradicts or duplicates other regulations adopted by federal, state or local agencies.

(4) Involves an excessive delegation of regulatory authority to a particular state agency.

(5) Unfairly burdens particular elements of the public.

(6) Imposes social or economic costs that outweigh its intended benefits to the public.

(7) Imposes unreasonable penalties for violation.

The review must be done in a timely manner and any concerns must be transmitted to the Senate Committee on Rules or the Speaker of the Assembly, as well as the relevant state agency that is promulgating the regulation. In the event that a state agency takes a regulatory action that the reviewing entity finds to be unacceptable, the entity must file a report for publication in the Daily Journal of its respective house indicating the specific reasons why the regulatory action should not have been taken. The report may include a recommendation that the Legislature adopt a concurrent resolution requesting the state agency to reconsider its action or that the Legislature enact a statute to restrict the regulatory powers of the state agency taking the action.

Chris Micheli is an attorney and legislative advocate at the Sacramento governmental relations firm of Aprea & Micheli, Inc. He can be contacted at 916-448-3075 or cmicheli@apreamicheli.com. He serves as an Adjunct Professor at McGeorge School of Law.