May 13, 2022

California Government Affairs: Is Transparent Government Gone in California?

At the time of this writing, the California Legislature has left town for its annual spring break. It’s a welcome time for all stakeholders in the legislative process to take a breath, evaluate what has happened to the bills so far and determine the next steps forward that will lead to best possible outcomes.

Like life in general, this is more art than science. The future is filled with a mix of known facts combined with a long list of potential unknown circumstances. In recognition of this reality, learning to “read the tea leaves” is a critical part of a WG advocate’s role in helping to shape the passage, defeat or amending of bills and regulations. This is usually made easier by a set of strict transparency rules. Emphasis should be placed on “usually.” These rules help to plan out the timing of when bills will be heard and provide a roadmap for the lobbyists to use in deciding how to best advocate on a bill. I mentioned in my previous article that I had positive hope for a return to transparent government given the easing of COVID-19 restrictions. Hope remains, but a positive outlook on how the Legislature will operate for the remainder of 2022 is starting to wane.

Transparency is a founding principle of governmental systems and processes in the United States. The founding fathers recognized this in our country’s earliest days, and it has been carried forward with loyalty ever since. Transparency serves two main functions. First, it ensures that an open legislative and regulatory process is followed so that the public has early and ample time to let their voices be heard before any final governmental action is taken. Two, Justice Louise Brandeis famously claimed “Sunlight is the best disinfectant.” Oversight and transparency are good checks on the system to help ensure that government remains honest and forthright in how issues are addressed.

Most of the actual lobbying on bills happens in the days and weeks prior to a bill being scheduled for its first policy hearing. Lobbyists are able to meet with all of the stakeholders, pro and con, as well as with the authoring legislators or their staffs. This is like a well-choreographed dance where all sides know the rules, come away understanding the positives and negatives of a proposed change in policy, and determine the possibility of coming to an agreement on language if there are disagreements. Usually, there are a lot of disagreements!

The COVID-19 pandemic led to a severely truncated version of this process whereby it was difficult to have substantive meetings with stakeholders and legislative staff. Bills were amended at the last possible minute with COVID-19 often used as the excuse. This led to very little time to prepare and provide both written and oral testimony. Unfortunate circumstances for sure but somewhat understandable given that society was essentially shut down.

COVID-19 has transitioned now to more of an endemic phase and society has reopened. Restaurants and shopping centers are back to streaming crowds, who are happy to enjoy the freedom that used to be taken for granted. The Capitol itself is back to being open to legislative staff and the greater public. That is welcome news.

However, the vestiges of the lack of transparency in the legislative process remain. When bills are amended, lobbyists, in some circumstances, have been told that they only have 12 hours to submit a position letter. That is hardly enough time to understand the words in the bill, let alone connect with association members or clients to determine the impact of those words on actual business owners and employees. I participated in a regulatory hearing recently and the informational materials that were to be discussed for the hearing were not posted until after the hearing was concluded. That isn’t acceptable.

One can only come to the conclusion that the diminished transparency in the process is not accidental but is a choice that California government has taken…COVID-19 issues notwithstanding. This doesn’t allow the general public to have their voices heard. However, it has heightened WG lobbyists’ radar to keep a vigilant eye out for any legislative maneuvers on bills that would have a harmful impact on the California agricultural industry.

I remain hopeful and optimistic that transparency in California government will eventually return. Our geographically unique state, diverse population and incredible industries deserve nothing less.