BILL ANALYSIS Ó
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Date of Hearing: June 15, 2016
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Shirley Weber, Chair
ACA 9
(Gomez) - As Amended April 21, 2016
SUBJECT: Legislature: legislative vacancies.
SUMMARY: Requires the Governor to fill a vacancy in the
Legislature by making an appointment from a list of three names
selected by certain entities, as specified. Specifically, this
measure:
1)Makes legislative findings and declarations that Members of
the Legislature are expected to fulfill the full term of
office to which they have been elected.
2)Provides that if a vacancy occurs in either house of the
Legislature, each of the following shall, within 30 days of
the vacancy, provide to the Governor the name of one person to
be nominated for appointment to fill the vacancy:
a) In the legislative house in which the vacancy occurs,
the legislative caucus of the same political party
preference the vacating Member had at the time he or she
was last elected to the Legislature. Requires the
legislative caucus to agree by a majority vote on the name
of the person to submit to the Governor for consideration.
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b) The delegates to the state convention of the same
political party preference the vacating Member had at the
time he or she was last elected to the Legislature who
reside in the vacating Member's district boundaries.
Requires the delegates to agree by a majority vote on the
name of the person to submit to the Governor for
consideration.
c) The county board of supervisors of the county or
counties in which the vacating Member's district is
located. Requires the county board of supervisors or
boards of supervisors jointly, as applicable, to adopt a
resolution setting forth the name of the person to submit
to the Governor for consideration.
3)Provides that a person may be nominated to fill a vacancy only
if, at the time the person is nominated and during the 12
month period immediately preceding, the person had the same
political party preference the vacating Member had at the time
that Member was last elected to the Legislature.
4)Requires the Governor, within 60 days of the vacancy in the
Legislature, to fill the vacancy by appointing one of the
persons nominated pursuant to the provisions above. Deletes
provisions of law that require the Governor, when a vacancy
occurs in the Legislature, to immediately call an election to
fill the vacancy.
5)Requires the Legislature to enact laws implementing the
provisions of this measure related to filling vacancies in the
Legislature.
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6)Prohibits a Member who has vacated his or her seat before the
expiration of his or her term of office, for reasons other
than personal medical reasons, from lobbying before the
Legislature, for compensation, until 12 months has passed from
the date his or her term of office was scheduled to expire.
7)Makes technical and corresponding changes.
EXISTING LAW:
1)Requires the Governor to issue a proclamation calling a
special election within 14 calendar days of the occurrence of
a vacancy in a legislative office, unless that vacancy occurs
after the close of the nomination period in the final year of
the term of office.
2)Permits the Governor, whenever there is a vacancy in the
office of the Superintendent of Public Instruction, the
Lieutenant Governor, Secretary of State, Controller,
Treasurer, or Attorney General, or on the State Board of
Equalization, to nominate a person to fill the vacancy who
shall take office upon confirmation by a majority of the
membership of the Senate and a majority of the membership of
the Assembly, as specified.
3)Requires the Governor, whenever a vacancy occurs in a county
board of supervisors, to fill the vacancy, as specified.
Requires the appointee to hold office until the election and
qualification of his or her successor.
4)Permits the Governor to appoint or nominate a person to fill a
vacancy on the California Supreme Court, the court of appeal,
or the California Superior Court, provided the individual is
confirmed by the Commission on Judicial Appointments, as
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specified.
5)Prohibits a Member of the Legislature, for a period of one
year after leaving office, for compensation, from acting as
agent or attorney for, or otherwise representing, any other
person by making any formal or informal appearance, or by
making any oral or written communication, before the
Legislature, any committee or subcommittee thereof, any
present legislator, or any officer or employee thereof, if the
appearance or communication is made for the purpose of
influencing legislative action.
FISCAL EFFECT: Unknown
COMMENTS:
1)Purpose of the Measure: According to the author:
In 2013, Los Angeles County spent more than twelve
million dollars on special elections. Recently, Fresno
County spent more than $500,000 on a special election
in the 31st Assembly District. These costs are too
great when there are many other priorities that could
use this funding. ACA 9 proposes to maintain a
democratic process, while also making sure that a
district doesn't go too long without representation in
the Assembly or Senate. This constitutional amendment
also prohibits a legislator vacating their seat prior
to the end of the term from lobbying until one year
after the end of their term. This prevents legislators
from leaving their elected office early and then
benefiting from it by lobbying ahead of legislators
that fulfilled their elected term.
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2)Current Practice: Existing law provides the Governor with
specific appointing authority for certain elected positions.
For instance, current law authorizes the Governor, whenever
there is a vacancy in the office of the Superintendent of
Public Instruction, the Lieutenant Governor, Secretary of
State, Controller, Treasurer, or Attorney General, or on the
State Board of Equalization, to nominate a person to fill the
vacancy who shall take office upon confirmation by a majority
of the membership of the Senate and a majority of the
membership of the Assembly, as specified. Additionally,
existing law permits the Governor to appoint a person to fill
a vacancy on a county board of supervisors, or for a vacancy
on the California Supreme Court, the Court of Appeal, and the
California Superior Court, as specified.
However, whenever a vacancy occurs in the State Senate or
Assembly, current law requires the Governor to issue a
proclamation calling for a special election within 14 calendar
days of the occurrence of the vacancy unless the vacancy
occurs after the close of the nomination period in the final
year of the term of that office. This constitutional
amendment makes changes to this process. Specifically, this
measure deletes provisions of law that require the Governor to
call a special election within 14 days after a vacancy occurs
in the Legislature and instead requires the Governor to fill a
legislative vacancy by making an appointment within 60 days of
the vacancy from a list of three names selected by certain
entities, as specified.
3)Legislative Vacancies and Special Elections: According to
records provided by the Secretary of State's office, since
2000 there have been 50 special elections (including primaries
and general elections) conducted to fill vacancies in the
State Senate and Assembly. Generally, special elections are
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unexpected and as a result, county elections officials are
unlikely to anticipate the cost in their budgets. A special
election to fill a legislative vacancy can result in costs of
approximately $500,000 to $1 million for counties to conduct
depending on the size of the county. Moreover, aside from the
cost of the election, critics argue that many special
elections, in particular those that are not consolidated with
a regularly scheduled election, result in significantly lower
voter turnout than regularly scheduled elections. The turnout
for special elections for state legislative vacancies averages
around 15 percent.
4)Resignations from the California Legislature: Since the
2001-2002 Legislative Sessions, there have been 32 instances
in which a member of the Legislature resigned from office
before the completion of his or her term. More than 84% of
the resignations were the result of members being elected to
other public offices by the voters (25 cases) or being
appointed by the Governor to fill vacancies in other elective
offices (two cases). In the five cases where a member of the
Legislature resigned for a reason other than assuming another
public office, one resigned after a criminal conviction, one
resigned amid press reports about comments he made regarding
an alleged relationship with a lobbyist, and three resigned
from office and subsequently accepted governmental relations
jobs with private organizations.
5)Other States: There is tremendous variation among state
legislatures in how they fill a vacancy among their membership
when it occurs. According to a National Conference of State
Legislatures (NCSL), in general, a vacancy is filled either
through a special election or by appointment. The NCSL
indicates that 25 states fill legislative vacancies through
special elections, which may be ordered by the governor or
other official after being notified of the vacancy. Moreover,
25 other states fill legislative vacancies through some form
of appointment process, such as by the political party of the
incumbent legislator, a board of county commissioners, the
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governor, the Legislature, or members of the same house and
party as the incumbent legislator.
6)Revolving Door Restrictions on Former Government Officials:
Article IV, Section 5 (e) of California Constitution states,
"The Legislature shall enact laws that prohibit a Member of
the Legislature whose term of office commences on or after
December 3, 1990, from lobbying, for compensation, as governed
by the Political Reform Act of 1974, before the Legislature
for 12 months after leaving office." The Political Reform Act
(PRA) places restrictions on the post-governmental activities
of certain former public officials, including Members of the
Legislature. These restrictions are commonly known as a
"revolving door ban." Specifically, Members of the
Legislature are prohibited, for a period of one year after
leaving office, for compensation, from acting as agent or
attorney for, or otherwise representing, any other person by
making any formal or informal appearance, or by making any
oral or written communication, before the Legislature, any
committee or subcommittee thereof, any present legislator or
any officer or employee thereof, if the appearance or
communication is made for the purpose of influencing
legislative action. The one-year ban generally serves to
prevent former officials from taking advantage of their
relationships with former colleagues for the benefit of third
parties by prohibiting former officials from having direct
communications with their former agency in an attempt to
influence decisions.
This constitutional amendment expands the one-year-ban provision
for Members of the Legislature. Specifically, this measure
provides that a Member who has vacated his or her seat before
the expiration of his or her term of office for any reason
other than personal medical reasons, will be prohibited from
lobbying before the Legislature, for compensation, until 12
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months have passed from the date his or her term of office was
scheduled to expire. The practical effect of this provision
means that if a Member of the Legislature resigns from office
for any reason other than a personal medical reason, the
one-year-ban could be longer than one year. Moreover, because
the term personal medical reason is not defined, committee
staff is unsure what would constitute a personal medical
reason and thus exempt the resigning Legislator from these
provisions.
7)No Party Preference Legislators: This bill requires the
Governor to fill a vacancy in the Legislature by making an
appointment from a list of three names selected by certain
entities. Specifically, this bill requires the legislative
caucus of the same political party preference the vacating
Member had at the time that Member was last elected to the
Legislature, the delegates to the state convention of the same
political party preference the vacating Member had at the time
that Member was last elected to the Legislature, and the
county board of supervisors of the county or counties in which
the vacating Member's district is located to each submit the
name of one person to Governor for consideration for
appointment to fill the vacancy. It is unclear how these
provisions would logistically work if the vacating Member was
registered as having No Party Preference (NPP). There is
neither a NPP legislative caucus, nor any NPP central
committees. Would the Governor be limited to appointing the
person who was nominated by the county board of supervisors of
the county or counties from the vacating Member's district?
8)Related Legislation: AB 2284 (Patterson), requires a
Legislator who resigns before the completion of his or her
term to use surplus campaign funds to pay for the resulting
special election. AB 2284 failed passage of this committee on
a 2-3 vote.
SB 967 (Vidak), requires the state to pay expenses authorized
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and necessarily incurred on or after January 1, 2008 and
before December 31, 2016, for elections proclaimed by the
Governor to fill vacancies in the office of the Senate,
Assembly, and United States Senator or Representative. SB 967
was held on the Senate Appropriations Committee's suspense
file.
9)Previous Legislation: SCA 16 (Steinberg) of 2014, would have
required the Governor to fill a Legislative vacancy by
appointment within 21 days of the date of the vacancy, as
specified. SCA 16 was approved by the Senate Elections &
Constitutional Amendments Committee and the Senate
Appropriations Committee, but subsequently was referred to the
Senate Rules Committee and no further action was taken.
10)Approval of Voters: As a constitutional amendment, this
measure requires the approval of the voters to take effect.
Existing law requires measures submitted to the people by the
Legislature to appear on the ballot of the first statewide
election occurring at least 131 days after the adoption of the
proposal by the Legislature. The statutory deadline to place
a measure on the ballot for the November 8, 2016, statewide
election is June 30, 2016. If this measure is chaptered after
June 30, 2016 it would appear on the ballot at the 2018
statewide primary election, or at any statewide special
election that is held prior to that date, but at least 131
days after this measure is adopted.
REGISTERED SUPPORT / OPPOSITION:
Support
None on file.
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Opposition
None on file.
Analysis Prepared by:Nichole Becker / E. & R. / (916) 319-2094