The Crush - August 2020 - 4

[ STATE FOCUS ]

Can You Hear Me?

A LEGISLATURE FUNCTIONING REMOTELY MAY NOT HEAR ALL THE VOICES
By Michael Miiller
The California Legislature has struggled with how to conduct
the public's business in the midst of COVID-19. When the
pandemic hit, the Legislature was gearing up for the start of
committee hearings, but things quickly came to a full stop. After
an extended break, the Legislature returned to the Capitol in
early May. In the next few weeks, at least two elected officials
and several legislative staffers tested positive for COVID-19.
Fortunately, they all recovered.

Legislative hearings since
March have all utilized a virtual
process. The most often repeated
phrase in virtual meetings is,
"Can you hear me?" This is a big
problem.

Initially, the Senate and Assembly were not on the same page.
Assembly Speaker Anthony Rendon (D-Lakewood) required
assemblymembers to come to the Capitol, but Senate President
Pro Tempore Toni Atkins (D-San Diego) said senators don't
necessarily have to return to Sacramento.

The voice of the people: "Can
you hear me?" The public
has a right to participate in
public hearings and a right to
communicate with their elected
officials. Virtual meetings allow for easier public participation
because people don't need to come to Sacramento to express their
views. However, the glitches in the remote hearing process can
unintentionally silence the voice of the people.

The Assembly then passed ACA 25 (Mullin, D-South San
Francisco), an amendment to the California Constitution to
explicitly allow lawmakers to participate and vote remotely or
via proxy during a state of emergency. ACA 25 stalled in the
Senate.

That process involves calling into a conference line which has
a limited capacity. Moderators on the call must coordinate
remotely with the committee chair and staff. This can create
confusion, callers are sometimes cut off in the middle of
testimony, and hearings can run on for several hours.

This month, the Senate began allowing senators to participate
remotely in committee hearings. Senators must be in their district
offices to remotely participate, the committee chair and a quorum
of committee members must be in the Capitol, and a request to
participate remotely is subject to approval by the secretary of the
Senate.

The voice of the elected official: "Can you hear me?" Every
lawmaker has a duty to represent their community. When any
elected official is not allowed to participate, this is contrary to the
basic tenants of our republic. Proxy voting helps make sure that
lawmakers can represent the interests of their districts.

The Assembly also adopted a new rule, HR 100 (Calderon,
D-Los Angeles) to allow for proxy voting on the Assembly
floor. The assemblymember must submit a letter to the chief
clerk requesting a proxy vote. The vote is then cast by the
proxy assemblymember. If, during the floor debate on the bill,
the assemblymember is persuaded to change her/his vote, the
assemblymember must submit a new letter.
This was quickly challenged by Assemblymember Kevin Kiley
(R-Granite Bay), who reminded lawmakers that Rendon had
determined that proxy voting is unconstitutional. In April,
Rendon's staff said, "The constitution necessitates the physical
presence of members to vote." However, Atkins stated, "The
Senate has to be able to do the people's business in a way that
protects the health of members, staff, and the public, and is
consistent with our constitution."

4 / AUGUST 2020

However, in allowing proxy voting and remote voting, both the
Senate and Assembly utilize a subjective process whereby the
leaders of each house decide whether any particular lawmaker
is allowed to vote. This means the outcome of any particular bill
can be directly affected by a decision to allow or deny a proxy or
remote vote.
The voice of the constitution: "Can you hear me?" These are
challenging times and both the Senate and the Assembly are
doing the best they can to do the people's business. Their efforts
are greatly appreciated. Ultimately though, it may be an issue
for a court to decide whether those efforts are constitutional.
The question of whether lawmakers must be physically present
to participate and whether the public was allowed an adequate
opportunity to participate means that any bill signed into law in
2020 may be challenged in court.

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200ACA25 http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200ACA25 https://sd39.senate.ca.gov/news/20200724-senate-leader-atkins-statement-remote-voting-senate https://sd39.senate.ca.gov/news/20200724-senate-leader-atkins-statement-remote-voting-senate https://ad06.asmrc.org/ https://ad06.asmrc.org/ https://www.politico.com/newsletters/california-playbook/2020/04/27/remote-voting-concerns-for-ca-legislature-temperature-checks-ahead-tesla-workers-heading-back-this-week-gops-cotton-proposes-restricting-chinese-students-from-enrolling-in-science-math-at-us-universities-489034 https://www.politico.com/newsletters/california-playbook/2020/04/27/remote-voting-concerns-for-ca-legislature-temperature-checks-ahead-tesla-workers-heading-back-this-week-gops-cotton-proposes-restricting-chinese-students-from-enrolling-in-science-math-at-us-universities-489034

The Crush - August 2020

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