How our laws are really made
By Karen de Sá
SACRAMENTO — Imagine: At a time when California is lurching from crisis to crisis, a legislator has an idea to make life better. He puts together a bill, gathers support and shepherds it into law.
If only Sacramento worked like that. Instead, it often works like this:
A lobbyist has an idea to make life better — but only for his client. The lobbyist writes the bill, shops for a willing lawmaker to introduce it and lines up the support. The legislator? He has to do little more than show up and vote.
This is the path of the “sponsored bill,” a method of lawmaking little noticed outside California’s capital but long favored on the inside. In many states lobbyists influence legislators; in
California, they have — quite baldly — taken center stage in lawmaking.
Although lawmakers in recent years have routinely failed to grapple with health care, the state budget and other matters of public interest, they’ve managed to do the bidding of the private interests who tout sponsored bills at an impressive clip.
A Mercury News analysis found that in 2007-08, the most recent complete two-year legislative session, more than 1,800 bills — about 39 percent of the total — were sponsored by outside interests. And those sponsored bills made up 60 percent of the legislation that was passed into law.
This is how plumbing manufacturers ensured that industry-friendly labs — and not state regulators — would conduct the testing that determines whether drinking faucets sold in California are lead-free. This is how a Los Angeles County billionaire crushed a legal challenge over whether his plans for a new football stadium violated the state’s long-standing environmental protection law.
Recalling his first encounters with lobbyists seeking legislative backing for their bills, former Assemblyman Joe Canciamilla said, “It’s like being in a Middle Eastern bazaar. You are surrounded by hawkers saying, ‘Take this one, no, take this one, no, I’ve got a better one over here.’ The openness of that — the ‘oh yeah, that’s the way things are done’ attitude — was the most shocking.”
Legislators, continued Pittsburg funeral home director Canciamilla, “are supposed to be the buffer between the interest groups and the public — and that buffer no longer exists. Now, they’re a direct conduit.”
The Mercury News analysis, the first ever undertaken of sponsored bills in California, revealed:
Lobbyists have long been known in California as the Third House, referring to their entrenched status alongside the Legislature’s two official houses, the Assembly and Senate. But through interviews with current and former legislators and aides, as well as lobbyists and outside government experts, the Mercury News documented a changed pattern: Today, lobbyists function almost as a shadow legislature, pulling the strings at every turn for short-term lawmakers who have become accustomed to letting private interests monopolize the public debate. At the center of this reality is the sponsored bill.
“You don’t learn this in American civics class,” said Derek Cressman, a regional director for the nonpartisan group Common Cause. “You don’t learn that some interest group drafts this and gives it to a legislator along with a contribution and says, ‘We would like a law introduced.’ “
Cressman said the result is that “organizations with deep financial pockets can present their issues to the Legislature, and those that don’t are in essence invisible.”
James Wedick goes further. Now retired, Wedick was the lead undercover FBI agent who established a phony shrimp processing company in California in 1985, then documented lawmakers taking bribes to support a sponsored bill crafted to help his fake business.
The FBI’s sting operation known as Shrimpscam landed five legislators in prison but — he concedes — had little long-term effect. “It’s been going on forever and it lends itself to corrupting the whole process,” Wedick said of sponsored bills. “The whole process has been hijacked.”
Maneuvers at midnight
Here’s one example of how sponsored bills hijack the process of lawmaking — allowing private agendas to overwhelm the public interest.
In 2007, the Legislature took up a bill to authorize the spending of a $2.8 billion affordable housing bond approved in a voter referendum. The bill initially sought to ensure that projects would be efficient and geographically diverse, and that they would reduce homelessness.
But at the urging of a lobbyist for the sports and entertainment giant Anschutz Entertainment Group, a different, sponsored version of the bill suddenly appeared — amid a flurry of bills on the last days of the legislative session. Several legislators whose names were attached to the bill dropped off, leaving only Assembly Speaker Fabian Nuñez, D-Los Angeles, as legislative backer of the amended bill. It cleared the Senate after midnight, and the Assembly at 3:26 a.m.
Hugh Bower, the lead staff member of the Assembly Committee on Housing and Community Development, was stunned when the bill came up that night; he had been told the issue was dead. There was such chaos, Bower recalls, that one committee member still thought the next day that the amended bill had died.
What was Anschutz’s interest? Its version of the bill allowed some affordable housing funds to be used for parks, landscaping and fancy sidewalks in the neighborhood around the company-owned Staples Center in downtown Los Angeles.
Anschutz insisted its changes would let any “Business Improvement District” — a specially created association of property owners and government agencies — apply for the funds. But only the district near the Staples Center did, receiving the maximum award of $30 million, according to state housing officials.
Christine Minnehan, director of legislative advocacy for the Western Center on Law and Poverty, lamented the award, saying many affordable housing projects were awarded less than half that amount. She called the outcome “a theft of public funds, and a deception of the voters.”
A California tradition
For as long as anyone now in Sacramento can remember, the California Legislature has identified outside parties pushing bills.
Legislative historians asked by the Mercury News to research the practice say it dates to at least the 1940s.
Officials in some other states, told of California’s practice, greeted it as an admirable form of public disclosure.
In Mississippi “there is no mention of groups who support the bill, even if they drafted the bill and requested a legislator to sponsor it,” said Barbara Powell, lobbyist for Common Cause Mississippi. Jane Pinsky, director of the North Carolina Coalition for Lobbying & Government Reform, said, “We really have no transparency on who is behind legislation in North Carolina.”
But in California, it is quite clear that full disclosure has reinforced the system of sponsorship, legitimizing the influence of special interests.
Where other states, and the U.S. Congress, use the term “sponsor” to mean the legislators who carry the bill, in California the term refers to the outside party; the legislator who introduces the bill is called the “author.”
“Author is really a misnomer because the real author is the special interest group,” said Keith Richman, a health care executive and former Republican assemblyman from Granada Hills. “Essentially, the legislators are simply prostituting.”
Many legislators say they take only ideas and guidance from sponsors, but maintain control over the bill. “Our job is to be deliberative and have our legislative hat on so we can make good judgments,” insisted Sen. Leland Yee, D-San Francisco, one of the leading authors of privately sponsored bills.
But dozens of interviews inside and outside the capital reveal that legislators have often surrendered their role.
Lobbyists working on behalf of sponsors craft original bill language.
They write fact sheets for legislators and their staff.
They even write the speeches lawmakers deliver on the floor extolling bills. “It’s common knowledge that the floor statements are written by lobbyists,” said lobbyist Jackson Gualco, previously a special assistant to former Assembly Speaker Willie Brown. “Some staff members change it, other times it’s word for word.”
Lobbyists solicit votes, suggest and evaluate amendments, and seek to win support from the governor’s office.
When the legislator who introduced the bill goes to committee hearings to present and defend the proposed legislation, the lobbyists and sponsors typically sit alongside, and often commandeer the proceedings.
The legislator “may get a question that he’s not prepared for because he’s not as knowledgeable about the issue as I am,” said one lobbyist who represents many private interests. “I may nudge his knee a bit or lift my left hand up on the table rather than having him answer a question incorrectly.”
Commonly, the lobbyist added, he lets the legislator know “I’d like to answer the questions.”
Help for the 49ers
The Mercury News analysis identified outside sponsors for 39 percent of bills introduced in the last session. But that does not capture the complete number.
Official disclosure of the sponsors is left to the legislative committees and their staffs. Most committee analyses explicitly list the sponsors, but some, like the Senate Local Government Committee, do not. And sometimes — even when a bill clearly benefits a private party — legislators describe the ideas as their own.
That was the case with Senate Bill 43, introduced last July by Sen. Elaine Alquist, D-Santa Clara, to assist the San Francisco 49ers in their effort to build a $937 million publicly subsidized football stadium in Santa Clara.
The team was frustrated that the city’s charter required them to put the contract to build the stadium out for competitive bid. Alquist’s bill exempted the stadium from the bid mandate.
Alquist said she came up with the idea herself. That surprised some local officials: “It’s hard for me to believe the 49ers didn’t go in and ask for this bill,” said Santa Clara Councilman William Kennedy, a stadium opponent. What’s more, city staff said the team had mentioned during negotiations that it might turn to the Legislature for help.
“I have no idea what the 49ers said to people at City Hall,” Alquist said, explaining that she simply wanted to help expedite the process. “I had nothing to do with that.”
Whatever the bill’s origin, the 49ers became the driving force. The team spent $73,779 on lobbyists who schmoozed the governor and the Legislature on the bill, according to reports filed with the secretary of state. The bill sailed through both houses, although legislative staffers cautioned of “a bad precedent,” noting that 125-year-old “competitive bidding requirements exist to prevent favoritism, corruption and waste of public money.”
Bills for profit
Outside sponsorship breeds success; sponsored bills are far more likely than bills without sponsors to become law.
The Mercury News analysis shows that success was especially likely when the bills were sponsored by businesses and industry groups. Almost half of those bills ended up signed by the governor — a far higher percentage than bills that had no sponsor.
For the 2007-08 legislative session, 177 of the 347 bills sponsored by private interests that were introduced in the Assembly — 51 percent — were passed into law. In contrast, 326 of 1,793 bills introduced in the Assembly that had no sponsor — or 18 percent — became law.
On the Senate side, the disparity was modestly smaller. About 43 percent of the bills introduced on behalf of private-interest sponsors in the last session became law; 24 percent of Senate bills that were introduced without a sponsor became law.
Peter Detwiler, who as the longtime staff director of the Senate Local Government Committee is one of Sacramento’s most seasoned bill analysts, said the findings demonstrate the power outsiders have gained as legislators arrive in office facing a ticking clock on their terms in office.
“In a term-limited legislative environment, the attention goes to those who can focus attention narrowly on a topic or interest,” Detwiler said.
Private vs. public
The narrow purpose of a sponsored bill is rarely a secret in the Capitol; the committee analyses make sure of that.
Those analyses, written by legislative staff, often bluntly note that the legislation has a private rather than public benefit. And while at times those warnings help to defeat the bills, other times the legislators approve them — and insist they have done the right thing.
Consider these examples from the 2007-08 session.
When the PowerFlare Corporation of Atherton sponsored a bill to require that electronic roadside beacons replace all standard flares now in use by the state Highway Patrol, the bill was pitched as a way to enhance motorists’ safety. But the bill analysis noted that it would “significantly increase demand for electronic beacons, which are manufactured by the sponsor of the bill,” and that the cost to the taxpayers of replacing flares with beacons would be high. The bill died in committee.
When MySpace sponsored a bill bolstering its ability to prevent individuals with certain criminal records from using its site, it extolled the legislation as a way to keep children safe from sexual predators on the Internet. But nestled in the bill was a provision that would have given the online social networking site broad immunity from lawsuits as a result of its efforts to restrict access.
A committee analyst wrote that the bill “raises troubling issues of manipulation of the legislative process to protect the financial and business interests of corporate entities, under the thin guise of providing additional tools to law enforcement.” The bill passed the Assembly, but later died in the Senate.
And when the Plumbing Manufacturers Institute sponsored a bill giving labs reliant on industry funding the authority to test drinking faucets and fountains, it promised the system would better protect Californians from lead in their drinking water. But a committee consultant characterized the plumbing group’s intention as “a not-so-subtle process for subverting what legislators thought they were enacting” — a way to protect the public from a harmful substance.
Despite protests from more than 50 public health and consumer organizations, the bill was signed into law in September 2008.
Sen. Ron Calderon, D-Montebello, who introduced the bill, said in an interview that he has “no concerns” with the industry overseeing testing. “As a matter of fact, I believe the problem with regulatory boards in general is that they don’t recruit or appoint enough people from the industry that they regulate.”
Calderon received $13,900 from the institute and member faucet makers during the 2007-08 term.
Some observers argue these private interest bills do, ultimately, benefit at least a portion of the public. Thad Kousser, associate professor of political science at UC San Diego, said legislators who introduce sponsored bills on behalf of industries are doing exactly what they are sent to Sacramento to do: represent the interests of their district. “What better way,” he asked, to help “the employers of their constituents?”
But former state senator McClintock, the sole legislator who did not introduce a single sponsored bill in the last session, argues that constituents’ interests have little to do with it. McClintock, now a congressman, said: “It’s a general rule that sponsors are bureaucracies seeking more power, or companies seeking more money.”
In a system where more bills fail than succeed, critics complain that many of the proposed laws are harmful even when they fail because they further clog an overloaded Legislature.
Senate President Pro Tem Darrell Steinberg said in a speech this session that the state has become a “bill factory,” with too many unnecessary bills proposed and too little analysis of the impact of bills already passed. Treasurer Bill Lockyer, a former legislator, put it more bluntly at one recent hearing: “There’s too much junk.”
Everyone’s a sponsor
As the influence of lobbyists has grown, plenty of groups, in addition to private companies and industry organizations, have taken up sponsoring bills.
Unions do it. Government agencies do it. Environmental groups do it. “We sponsor bills and I’m very proud of them,” said Sierra Club California director Bill Magavern. The Sierra Club, for instance, was co-sponsor of a bill that revamped the process for recycling and disposing of mercury-tainted thermostats.
“There’s nothing wrong with sponsored bills conceptually,” said Assemblyman Jared Huffman, D-San Rafael, who introduced 25 sponsored bills last session, seven of them sponsored by private interests. “There are lots of sponsors from the Sierra Club to the oil and gas industry — and everyone in between who think up good ideas and bring them to legislators every year.”
Huffman is one of many legislators who argue that not all sponsored bills are created evil. But even if liberals might applaud sponsored environmental legislation, and conservatives might cheer bills from the California District Attorneys Association, government experts say these efforts have the same problems as the more brazen pursuits of the Anschutz Entertainment Group.
Lawmaking is supposed to involve a balancing of competing interests in the public good: Make the regulation tight enough to protect the environment, for example, but not so tight that it squelches economic activity. But when an interest group writes a bill, there is no such balance. Only its interest is represented.
“It’s undemocratic to have interest groups writing legislation,” said Dorie Apollonio, assistant professor at UC San Francisco’s School of Pharmacy and an expert on influence peddling. “If we’re unhappy with what legislators are doing, we throw the bums out,” she said, in contrast to lobbyists who do not answer to the public.
But in Sacramento today, some legislators say they’ve become dependent upon the role assumed by lobbyists.
When state Sen. Mark Leno, D-San Francisco, carried a bill last year to ban the use of toxic flame retardants in children’s products, he faced opposition from the powerful American Chemical Council. The help of bill sponsor Friends of the Earth was critical, he said.
“The chemical industry lobbyists can be in 10 member offices simultaneously while I’m going to offices one at a time,” he said. “So a lot of it comes down to math — a good sponsor is of value.”
Other legislators depend on sponsors for technical support as well as political skills.
And so the Sierra Club’s Magavern finds himself crafting bill language, providing legislators’ talking points and cajoling support for votes — not out of preference, but out of necessity.
“There still are some staffers that do some of that, but that number has declined,” Magavern added. “More and more, sponsors are expected to do most of the work.”
Mercury News news research director Leigh Poitinger, former staff writer Edwin Garcia and intern Sarah Yokubaitis contributed to this report.