Last-Minute Legislation Challenged

Challenging a tradition favored by both parties and Capitol lobbyists, the Schwarzenegger administration is threatening to veto last-minute legislation that pops up before the end of the session in three weeks.

Every year, legislation shows up seemingly out of nowhere and gets rushed through the Assembly and Senate without much public scrutiny.

Lawmakers accomplish this by stripping dormant or dead bills of their entire contents and replacing them with the new legislation -- a maneuver called “gut and amend.”

But the governor’s legislative secretary, Richard Costigan, said Schwarzenegger would look with skepticism at gut-and-amend bills on major issues “unless it’s necessary for the public good,” such as an emergency or a disaster. “I keep telling folks: Recognize that it can take us months to get departments, finance and agencies to do analyses,” Costigan said. “A gut-and-amend is not going to be looked upon favorably unless there is a compelling public interest.”

This week, for instance, lawmakers are preparing to eviscerate a bill on public education and replace it with legislation allowing U.S. soldiers overseas to be married by proxy back home. The legislation is designed to accommodate soldiers in Iraq and elsewhere who may not be able to return home to be married.

Another would substitute legislation on wages with a bill giving mothers greater power in child-custody disputes. The last-minute legislation overrules a recent state Supreme Court decision that said the child’s “best interest” must be considered -- meaning fathers could prohibit mothers who have custody of their children from moving too far away.

These bills are likely to get committee hearings, since there still is time before the end of session at midnight Aug. 31. If history is repeated, however, lawmakers will attempt to make major public policy changes in the final hours of work. The state Constitution forbids any legislation being passed after Aug. 31, unless there is an emergency.

In some cases, bills have been written and passed by both houses in a matter of hours before the end of session -- like a $931-million tax cut approved in 1997 during a midnight round of negotiating. In that case, then-Gov. Pete Wilson worked closely with Republican and Democratic leaders, but there was almost no public discussion of their maneuvers.

This week, California’s shipping industry is upset over a last-minute measure that would change its relationship with trucking companies. The original bill -- about state employee union contracts -- is about to be amended to install new rules governing the fees that cargo companies can charge trucking companies for using their containers, lobbyists said.

“With only a few days left in the session, it doesn’t provide for a significant public policy debate on the issue, and so it makes that difficult,” said John McLaurin, president of the Pacific Merchant Shipping Assn., which is working to kill the measure. “If there are legitimate issues, this isn’t the way to go about it in the closing days of the Legislature.”

The Assembly Appropriations Committee defeated another gut-and-amend bill Thursday that would have created a new utility surcharge for consumers, about 25 cents to 30 cents a month, to raise $100 million for solar power projects. The measure died in part because Schwarzenegger had not supported the amendments.

The deadline to introduce legislation was Feb. 20, so finding dormant bills and significantly amending them is the most effective way to get new legislation passed. The Legislature is considering several hundred bills as the Aug. 31 adjournment approaches, with the vast majority vetted in multiple committee hearings.

Sometimes gut-and-amend bills are introduced for purely political reasons -- to force a legislator in a tough reelection to vote on a politically sensitive change in public policy. Lobbyists sometimes push gut-and-amend bills that grant them tax cuts or other concessions, hoping nobody will notice during the rush of end-of-session business.

Sometimes, the issue is timing. This week, lawmakers and nursing home advocates announced that they would gut a bill on hospitals and replace it with a sweeping overhaul of how nursing homes are reimbursed by the state. The measure would allow California to tap $250 million in federal money.

Despite its last-minute nature, Assemblyman Dario Frommer (D-Los Angeles), who introduced the legislation, and other lawmakers said the bill was the culmination of years of negotiations that, under state law, had to be completed this month. The bill is expected to get its first hearing next week.

“Nursing homes are really in a crisis,” said Assemblyman Keith Richman (R-Northridge), explaining the late nature of the legislation. “We are in risk of nursing homes declaring bankruptcy. There is no reason to wait.”

Schwarzenegger himself may have to ask lawmakers to gut and amend a few bills before the end of session. If he, for example, signs any more legal compacts with Indian tribes allowing them to expand their gambling operations, he will need the Legislature to approve them before they go home Aug. 31.

That would undoubtedly require dormant legislation to be gutted and amended so lawmakers could take quick action.

Senate President Pro Tem John Burton (D-San Francisco) said the option to gut and amend bills needs to be available, because “there is always something that either fell through the cracks or you need to do something to clean up another bill.”

Burton pointed to the negotiations last month on the $105-billion state budget that were being written by Schwarzenegger and legislative leaders, and passed quickly by the Assembly and Senate.

“That is how we did the budget ... and that was fine with the governor’s office,” Burton said. “They ought to veto bills based on the merits and not on gut and amend.”