Not Yes, Not No, Not Even a Maybe
Whenever the state Assembly votes on a bill, there’s a good chance Jerome Horton will press neither the green “yes” nor the red “no” button on his desk. He says abstaining makes him powerful.
“When you vote yes or no,” said the Democrat from Inglewood, “it takes you out of the negotiations, and I don’t ever want to be out of the game.”
When lawmakers can’t get the votes they need to pass their measures, they rush to court the undecided in hopes of changing an abstention to a “yes” on another round of voting. That gives the abstainer leverage to argue for changes in the bill.
“I’m Mr. 41,” said Assemblyman Horton, referring to the last vote needed to pass most bills. “I’m always in the game.”
What Horton sees as clout, others see as the shirking of a lawmaker’s essential duty. One of Horton’s Democratic colleagues, Assemblyman John Laird of Santa Cruz, almost always picks yes or no.
“I just think I was sent up here to vote,” Laird said.
A lawmaker has the right to abstain from any -- or every -- vote that occurs during his or her term. But regardless of the reason -- a purposeful dodge, an absence due to illness, a visit to the restroom -- a withheld vote has the same effect as a no vote.
California’s legislative rules, unlike those in a few other states, require bills to be passed by a majority of lawmakers -- not a majority of those who happen to be present and voting.
In the only recent study of non-voting by California lawmakers, researchers found that Democrats decline to vote more often than Republicans -- 32% of the time, on average on bills that fail.
Lawmakers skip votes on bills that run from the arcane to the important, from banning the slaughter of farm animals on school campuses to legalizing gay marriage. Veterans say the practice is increasingly common.
“These days you see [non-voting] a lot more,” especially in the Assembly, said Ray Haynes (R-Murrieta), who spent eight years in the Senate and is now in his fifth year in the Assembly.
The practice runs counter to a core tenet of democracy: that lawmakers take a stand on behalf of the people who elected them.
“You’re there to do a job and to represent your constituents,” said Bruce Cain, director of the Institute of Governmental Studies at UC Berkeley. “If you’re not making decisions ... it seems to me you’re not fulfilling your obligation.”
Abstentions so annoy one group, the Foundation for Taxpayer and Consumer Rights in Santa Monica, that it has drafted a ballot initiative that would withhold the pay of lawmakers on days when they don’t vote.
“If I came to my job and a third of the time didn’t do what I was supposed to, I wouldn’t have a job,” said foundation President Jamie Court, who hopes to put the initiative on the ballot next year.
Abstentions are more common in the 80-seat Assembly, where voting occurs in an electronic rush, than in the smaller Senate, where the roll is called.
When a bill comes up for a vote in the Assembly, a bell rings and lawmakers race to press their plastic buttons. Big scoreboards at the front of the chamber listing all of the members’ names light up red and green -- or not at all for those who abstained.
In the Senate, every time a bill comes up for a vote, the clerk reads the last names of all 40 members, waiting to hear yes or no from each. To not vote, a senator must sit unresponsive while his or her name is called repeatedly.
Among the Democrats who dominate the Assembly, some -- Horton, Edward Chavez of La Puente, Simon Salinas of Salinas, Rebecca Cohn of Saratoga and Ronald S. Calderon of Montebello -- abstain more than others.
Chavez, for example, was present but did not vote on 13 of 35 contentious bills voted on the Assembly floor in May and June. Horton abstained on 11 of those, and Salinas, Cohn and Calderon each abstained on eight. More than 30 lawmakers abstained on none or only one of the 35 votes.
Chavez declined to speak on the record about why he abstains so frequently. Cohn and Calderon did not respond to requests for an interview.
Republicans, who make up 32 of the Assembly’s 80 members, abstain far less often, and many times they do so en masse to make a point.
Public policy students at USC who studied non-voting during the 2001-02 legislative session found an average abstention rate among Republicans of 13.5%, compared with the Democrats’ 32%, on bills that failed.
Assembly records show that one Republican, Keith Richman of Northridge, was present but did not vote on nine of the 35 controversial bills. Most of the votes came on a single day, June 2, when the Assembly session stretched past midnight. Richman’s staff said he flew back to his district that afternoon for a personal obligation and missed many votes.
Explanations for non-voting abound among lawmakers, their staffs and political scientists.
One is cultural. It’s considered “in your face,” they say, to vote against a bill written by a member of your party. Abstaining, some say, is a way to sugar-coat a no so it won’t offend a colleague or a committee chair who could exact revenge on your own legislation.
“I know it’s stupid, but there is a psychological effect in people when you vote no on their bill,” said Assemblyman Alberto Torrico (D-Newark), who in June abstained on several bills dealing with air pollution, land use and chemical regulation.
“My constituents want me to be effective,” Torrico said, “and one way to be effective is to not [anger] senators and Assembly members.” Torrico said he could avoid the problem “by laying off stuff instead of saying no.”
Freshman Assemblyman Juan Arambula (D-Fresno) knows about the expectation that members will “go along to get along.” Not long after he voted against a few Democratic bills, he said, another Democrat asked whether he was inadvertently pressing the wrong button.
“I jokingly said I had learned my colors in first grade,” said Arambula, a former Fresno County supervisor.
Another member said to him: “Didn’t you know that you’re not supposed to vote against other Democrats’ bills?”
Sometimes, lawmakers say, they abstain to avoid “throwing away” a vote that would anger a constituent or donor.
Torrico, for example, originally voted for a bill, AB 1101, to regulate air pollution at ports, airports, rail yards and distribution centers where diesel trucks congregate. He supported it even though it was opposed, he said, by New United Motor Manufacturing, a General Motors-Toyota venture that employs 5,000 people in his Bay Area district.
“I thought, ‘This is a good bill,’ ” Torrico said.
Bills that don’t pass the first time may be brought up repeatedly by the author, and subsequent votes showed the diesel measure would probably fail. In the end, Torrico abstained, opting not to attach his name to a losing proposition that might have offended one of his district’s big employers.
“It was going nowhere,” said Torrico. “And I said: What’s the point of me being on the bill?”
Horton, for his part, said he wouldn’t feel compelled to abstain so often if committees, which are supposed to massage bills into shape and kill those that are fatally flawed, did their jobs better. The assemblyman said the bills he abstains on often end up being vetoed by the governor or needing follow-up legislation to fix technical glitches.
“If we spend 30 minutes on an issue [in committee], everyone’s attention deficit sets in,” Horton said. “We’re spending five, 10, 15 minutes on issues that will affect hundreds of thousands of people.
“Sometimes I think the only time a policy gets challenged effectively is when it gets to the floor,” he said. That can result in poor legislation, Horton said. “We’re turning out broken products. Sometimes you have to participate in that; sometimes you don’t.”
Horton said the Legislature was “more political than we’ve ever been before, and less methodical and thoughtful,” and “term limits has caused this.”
Many lawmakers and experts agree that term limits are a factor. Passed by voters in 1990, the limits force legislators out after six years in the Assembly or eight years in the Senate.
Politicians who always have an eye on another office are less willing to cross the special interests that push legislation and fund campaigns, many said.
“Under term limits, people know their next race for office is in two or four or six years, and they’re looking over their shoulder to see who they need to avoid offending,” said Assemblyman Paul Koretz (D-West Hollywood), who rarely abstains. “I think that’s part of where the abstentions come from.”
One group of 14 Assembly Democrats with more moderate, pro-business views than those of their liberal colleagues makes regular use of abstentions as a way to get bills changed. Salinas, a member of the “mod” caucus, said “people were more coordinated to send a message” with abstentions this year.
For example, as the Assembly faced a June 3 deadline to pass its proposals to the Senate, the “mod” caucus considered AB 1007 by Assemblywoman Fran Pavley (D-Agoura Hills). The bill would have required the California Air Resources Board to write a plan to increase the use of alternative fuels such as ethanol in California. It also would have authorized the board to require use of alternative fuels in cars and trucks.
The measure was opposed by the Western States Petroleum Assn., which has spent $1.4 million lobbying for and against various bills this year, and the California Trucking Assn., whose members have given a wide range of lawmakers a total of $47,000 this year.
Pavley’s bill failed to pass on several votes June 2, largely because “mod” caucus members abstained. Pavley negotiated with Assemblyman Joe Canciamilla (D-Pittsburg), a caucus leader, and Calderon, who relayed the petroleum association’s concerns. Pavley agreed to delete the second half of the bill, which would have expanded the air board’s regulatory authority.
On June 3, after Pavley promised to change the bill so it simply required a plan by the air board, the measure cleared the Assembly, 49 to 27.
Court, the consumer advocate, complains that abstention “is a way special interests have found to get lawmakers to do what they want.”
Canciamilla dismisses that criticism, saying moderate caucus members tend to represent blue-collar districts wary of government regulation.
“Not all of us believe that regulatory agencies or boards can best serve the needs of the public when they are given carte blanche,” said Canciamilla. The Pavley bill, he said, shows that “if it’s used judiciously and in the proper context,” abstention is “a constructive device and useful tool.”
Pavley sees it another way. She noted that the idea for the bill was brought to her by Silicon Valley business leaders who see economic and environmental benefits to weaning California from petroleum.
“I didn’t consider the fuels bill anti-business,” Pavley said, “but it was heavily lobbied by WSPA [Western States Petroleum Assn.], and that was all it took.”
The only recent analysis of non-voting in the Legislature is the USC study. The researchers analyzed the 2001-02 legislative session and concluded that abstentions were decisive in nearly 40% of the bills that failed -- many bills got more yes votes than no votes but still failed because so many lawmakers abstained.
The study also ranked Assembly members by how often they abstained on 328 bills that failed. The top non-voter was Horton, who abstained on 60% of the bills that failed. (He abstained on 7% of a sample of 400 bills that ultimately became law.)
Close behind in abstentions were Democrats Tony Cardenas of Panorama City, Kevin Shelley of San Francisco, Gil Cedillo of Los Angeles and Manny Diaz of San Jose. Only Horton and Cedillo are still in the Legislature. Cedillo was frequently absent that year to tend to his ailing wife.