Wiener’s gut-and-amend tactics: Will they return with SB 50?

The senator has used a dubious legislative trick in the past, and some fear he is preparing to do it again.

The date was Valentine’s Day, February 14, 2017, in Sacramento CA, when Senator Scott Wiener introduced SB 384, a bill amending the California Business and Professions Code to permit the Department of Alcoholic Beverage Control to allow, but not require, cities to extend the closing hours of operation for the sale of alcoholic beverages from 2am to 4am.

The bill was popular in the nightlife industry in San Francisco, where many clubs were facing rent increases and other financial pressures. Many clubs make most of their money between 11pm and 2am; the extra two hours could make the difference between survival and closure for some places.

Will Wiener use a dubious trick to get a very controversial bill through the legislature?

The very next day, February 15, 2017, the same Senator Wiener introduced another bill, SB 421 to tier the registry for sex offenders so that individuals who committed misdemeanors and non-violent offenses would be required to register for 10 years instead of life, individuals who committed certain serious or violent offenses would be required to register for 20 years instead of life, and only individuals who committed the most violent sexual offenses or repeat offenders would be required to register for life.

The measure had widespread support. Civil-liberties advocates backed the bill. So did law enforcement. It was, most legal experts agreed, a perfectly reasonable piece of legislation.

For the sake of convenience, let’s call SB 384 “Last Call” and SB 421 “Sex Offenders.

As it turns out, only one of them could pass – through a bit of legislative trickery that the people of California have tried to stop. There could be a lesson here for opponents of his attempts to deregulate housing in the state.

How it all began

Each bill was heard by different Senate committees – Last Call was sent to the Senate Committees on Governmental Organizations and on Appropriations, while Sex Offenders was referred to the Senate Committees on Governance and Finance and on Transportation and Housing. Both bills eventually passed out of committee and were passed on the Senate floor and referred to the Assembly.

In the Assembly, Sex Offenders was referred to the Committees on Public Safety and Appropriations while Last Call was referred to the Assembly Committees on Governmental Organization and Appropriations.

The bait and switch

As of September 1, 2017, Last Call had been voted out of both Assembly Committees to the Assembly floor, but Sex Offenders had been held in suspense (i.e., tabled) in the Assembly Appropriations Committee (the suspense file of the Appropriations Committee in either the Assembly or the Senate is generally a graveyard where bills go to die).  So Sex Offendersdied in 2017, at least in name.

But Wiener used a dubious legislative practice called “gut and amend” to let Last Call  — the live bill — die and replace it with the dead bill, Sex Offenders.

So how did that happen?  As The Chron put it:

“Law enforcement pushed for the bill, arguing that California’s registry is so large that officers and the public can’t determine who is at high risk for re-offending. The registry has 100,000 sex offenders — meaning 1 in 400 Californians is on it.

‘It is really hard to talk about doing anything that can be perceived as helping a sex offender,’ Wiener said. ‘But, the reality is the registry is so broken that it makes people less safe.’

Legislation to overhaul the registry has been recommended by law enforcement officials for years, but lawmakers were hesitant to vote for a bill that would label them soft-on-crime. Wiener’s first attempt on the bill this year failed too, but he brought the bill back this week through a maneuver known as gut-and-amend, where the contents of an active bill are dumped and replaced with those of a dead bill.”

How Last Call Became Sex Offenders

On September 1, 2017, the Assembly Appropriations Committee passed Last Call  “as amended” but it was still an alcohol sales bill. Then, between the Appropriations Committee and the Assembly Floor, on September 5, 2017, the author published amendments that completely gutted all of Last Call’s provisions and replaced them with Penal Code and Sex Offender Registration Act provisions nearly identical to the provisions of the suspended Sex Offenders (with important concessions that the author had refused to make before Sex Offenders died in Appropriations).

When Last Call came to the Assembly Floor on September 7, 2017, Assemblymember Lowe moved to adopt the amendments (Assembly Journal page 3008) and what was now Sex Offenders masquerading as Last Call was referred back to the Committee on Public Safety. The new and vastly altered Last Call, however, was not sent back to Appropriations even though the Appropriations Committee held its twin, Sex Offenders, in suspense. Last Call  no longer looked anything like the bill that the Appropriations Committee had passed.

Removing All Trace

Last Call was republished on September 8, 2017, to its final form (all redlining removed).  The only trace remaining of the original bill and the process to “gut and amend” is found by running a “Compare Versions” of the bill as ultimately enacted with the 09/05/17 Amended Assembly version(3rdto the last version).

The Assembly Committee on Public Safety held a short hearing, without agenda, on September 11, 2017. This was not a huge hurdle, because as you may recall, Sex Offendershad already been approved by that committee.

So, presto, with a sleight of hand and a little bit of fairy dust, Sex Offenders had a second life after Last Call was gutted and amended to a completely different subject.  Opposition melted away and the bill sailed through.

Well, not quite.  SB 384, formerly Last Calland now Sex Offenders, came to the Assembly Floor on September 15, 2017, in the “Post Recess Assembly Floor Session 1 / 2 ” (debate starts with David Lowe presenting and asking for an “Aye” vote at 1:40:54 of the video and ends at 1:54:06 of the video with SB 384 passing the Assembly by 45-29-5 on September 15, 2017).  In the waning hours of the Senate Floor Session that started on September 15, 2017, just after 1:05 am on September 16, 2017, the Senate took up SB 384. When the bill was taken up (11:06:36 of the video for the session), Senator Wiener starts by saying that “SB 384 previously known as SB 421 is back from the Assembly and it is a better and more refined bill than when it left the Senate.”  Just nine minutes later, at approximately 1:14 am (11:15:35 of the video) SB 384, formerly SB 421, had passed the Senate 28-4 and was on its way to the governor’s desk for signature.

The final version of Sex Offenders now known as SB 384, a sex offender registry bill rather than a bill about last call for alcohol sales, passed through both houses in just eight days — from September 7, 2017, when Assemblymember Lowe moved to accept the amended language and the Assembly re-referred the bill to the Public Safety Committee to the passage by both houses of the Legislature on September 15, 2017.

Rather a long history lesson, but one worth understanding well.

Encore

Since he succeeded with the gut and amend strategy in 2017, some fear that Wiener can be expected to try the same thing again with his housing deregulation bill.

There are persistent rumors that Senator Wiener plans to do another “gut and amend” to try to pass the substance of SB 50 – which like Sex Offenders died for now in a committee— under the name of one of the bills that has passed the Senate and is pending in the Assembly.

But unlike Sex Offenders, SB 50 does not have widespread support, either statewide or in Wiener’s district. It’s a very controversial and high-profile bill.

SB 592 has been identified as a potential vehicle for a gut and amend.  It has cleared the Senate and has been held at the Assembly desk since May 24, pending referral.

SB 58 also is a candidate for Senator Wiener to “gut and amend,” to be reborn as the “son of SB 50.”  SB 58 is a bill to permit certain municipalities to extend closing time and last call hours for the sale and service of alcohol from 2am to 4am. Sound familiar?  It is nearly the exact same subject matter as old Last Call that Senator Wiener gutted and amended in the 2017 legislative session.

Wiener has 26 bills or resolutions that are still alive this session, 19 of which have passed the Senate and are pending in the Assembly.  The two I’ve identified — SB 58 (extended hours for alcohol sales to 4 am in certain jurisdictions) and SB 592 (licensing of Barbers and Cosmetologists) seem to be the most likely vehicles for a gut and amend — but it could be any of Senator Wiener’s other bills OR any of the bills of one of his co-authors OR one of the bills of a newly minted co-author. There are a number of bills that have “SB 50 like” language and provisions that could revive SB 50.

We, the voters, passed Proposition 54 in November 2016 to require greater transparency in our legislative process in large measure to stop the widely criticized practice of “gut and amend.” Prop 54, among other things, requires the publication and public display of all bills on the Internet for at least 72 hours prior to a vote.

Let us hope that our state legislators acknowledge the constitutional limits of their power.

Building more market-rate housing does nothing to solve the affordable housing crisis or the homelessness crisis.  In fact, market rate housing, especially speculative housing bundled and sold in securitizations in the global capital markets, creates enormous displacement, raises rents in the surrounding areas and increases the ranks of the unhoused dramatically.  Denying that inescapable truth is no different than the climate change denials coming out of Washington DC.

Hydee Feldstein is a retired attorney who lives in Los Angeles and is active on land use issues in her neighborhood council. Please send any comments to hydeefeldstein@yahoo.com.