A Closer Look at How Legislation Works in California
As part of the California legislative process, there are several things to understand, including the types of measures and bills that can be considered by legislators; amendments to bills - both substantive and technical ones; and, engrossing and enrolling - largely done out of the public’s view. Let’s take a closer look at each:
Types of Measures
There are three types of measures considered by the California Legislature:
All bills, constitutional amendments and resolutions must be printed by the Office of State printing and be made available to legislators, staff and the public, which is usually the next day online and at the Bill Room in the basement of the old section of the State Capitol.
Generally, no bill (except the Budget Bill) may be heard by any committee or acted upon by either house until the 31st day after the bill is in print. This requirement can be waived with a three-fourths vote of the house of origin.
Bills must be passed by both houses of the Legislature and be signed into law by the Governor (unless he or she allows the bill to become law without his or her signature) in order to take effect. Statutes can only be enacted through bills.
The Legislature may place measures on the statewide ballot for a vote by the people. These proposed Constitutional Amendments are ACAs (for those introduced in the Assembly) or SCAs (for those introduced in the Senate). Constitutional amendments proposed by the Legislature require a two-thirds majority vote of each house for passage (rather than the standard majority vote). Also, these measures are not sent to the Governor for signature or veto. Instead, they are placed on the next statewide ballot for a vote of the people.
If a majority of the statewide voters support the ballot measure, then the changes or additions become a part of the California Constitution. All constitutional amendments are referred to the policy standing committee having jurisdiction of that subject matter and, upon being reported out of that committee, are then re-referred to the committee having constitutional amendments within its jurisdiction. ACAs and SCAs may also be heard by the fiscal committees in each house prior to reaching the respective floors of the Assembly or Senate.
There are three types of resolutions that can be considered by the Assembly and Senate. One is used by either house individually (i.e., it only passes a single house in order to take effect), while the other two (concurrent resolutions and joint resolutions) require adoption by both houses of the Legislature before they can take effect.
House Resolutions (the term used in the Assembly) and Senate Resolutions are adopted by the house of origin only. All resolutions require a majority vote to pass and they are not subject to deadlines or waiting periods. As such, they may be acted upon in short order.
Joint resolutions are used for matters related to the federal government. They express a position of the California Legislature regarding pending congressional legislation. Joint resolutions take effect upon their being filed with the Secretary of State.
Concurrent resolutions are used for matters to be handled by both houses of the Legislature. They are used to create joint committees of the Legislature, memorialize former legislators, and for other limited purposes. Concurrent resolutions take effect upon their being filed with the Secretary of State.
Types of Bills
The following are the types of bills that people working in and around the State Capitol describe in their legislative dealings:
Appropriation bill - this bill contains language that appropriates funds for expenditures by the state.
Author-sponsored bill - this bill is the idea of the author, who is the official sponsor.
Backed bill - this bill is ready for introduction because it has a "backing" (formally called a jacket) that shows who the author is.
Budget bill - this bill is the main budget bill that makes appropriations for implementation of the state's fiscal year spending (the secondary bill is referred to as the “budget bill junior”).
Clean-up bill - this bill "cleans-up" changes to a law following enactment of a prior bill that needs to be modified.
Committee bill - this bill is authored by a majority of a committee; usually used for enacting non-controversial law changes.
District bill - this bill only applies to the legislator's own district, such as benefiting his or her transit district.
Fiscal bill - this bill must go through the fiscal committee after it has passed the policy committee.
Intent bill - this bill makes a statement of intent of the Legislature that the bill will do something on a topic specified in the intent statement; it is a placeholder for a later bill.
Omnibus bill - this bill is a measure that contains numerous changes to the law, generally suggested by a group, such as civil law changes recommended by the Judicial Council.
Special interest bill - this bill has a sponsor that is a particular interest group.
Sponsored bill - this bill came from an interest group or individual as the sponsor.
Spot bill - this bill makes a technical, non-substantive change in the law as a placeholder for a later bill; neither house’s rules committee will refer spot bills to a policy committee until they are substantively amended.
Technical corrections bill - this bill makes a technical correction in the law.
Trailer bill - this bill implements statutory changes as part of the budget adoption; these bills "trail" the main budget bill.
Two-year bill - this bill carries over from the first year of session into the second year of the session.
Unbacked bill - this bill does not yet have an author and no "backing" for introduction.
Provisions of a Bill
The following are the provisions of a bill introduced in the Assembly or Senate:
- The amendment date(s) are listed at the top of the first page.
- Followed next is the bill number.
- The principal author is listed next and, if there are coauthors of the bill, then their names are listed under the bill’s author in alphabetical order (there can also be principal co-authors of a bill).
- Next comes the date that the bill was introduced.
- The next provision is the title which indicates the code section(s) the bill is affecting and contains a relating clause.
- Legislative Counsel's Digest follows next and is a brief summary of the existing law and the changes the bill proposes to make to that existing law(s). The Digest is found on the front of each bill.
- Vote keys are part of the Digest. They identify the vote required to pass the bill, whether the bill makes an appropriation, whether the bill will be heard in the fiscal committee, and whether the bill contains a state-mandated local program.
- The Enacting Clause is contained in each bill pursuant to statute that provides "The People of the State of California do enact as follows."
- Finally, the actual bill language that will become law if the bill is adopted follows. Note that the bill contains strikeout text, which indicates that words are being deleted, while italicized words indicate new provisions in the bill.
Amendments to Bills
A bill either proposes a new law or amends or repeals an existing law. The Constitution provides that every act can only embrace one subject and that subject must be expressed in the title of the measure (this is the so-called “single subject rule”). The courts have been very liberal in their construction of what must be contained in the title of a bill.
Under the Joint Rules of the Assembly and Senate, the title of every bill introduced must convey an accurate idea of the contents of the bill and must indicate the scope of the act and the object to be accomplished. In amending a code section, the mere reference to the section by number is not deemed sufficient to meet this rule.
A bill amending more than one section of an existing law must contain a separate section for each section of the code amended. Bills that are not amendatory of existing laws are divided into short sections, where this can be done without destroying the sense of any particular section, to the end that future amendments may be made without the necessity of setting forth and repeating sections of unnecessary length.
Under the Joint Rules, a bill may not be introduced unless it is contained in a cover (called the “jacket”) attached by the Legislative Counsel and it is accompanied by a digest, prepared and attached to the bill by the Legislative Counsel, showing the changes in the existing law that are proposed by the bill. A bill may not be printed where the body of the bill or the Legislative Counsel’s Digest has been altered, unless the alteration has been approved by the Legislative Counsel. The digest must be printed on the bill as introduced, commencing on the first page.
Under the Joint Rules, whenever a bill is amended in either house, the Secretary of the Senate or the Chief Clerk of the Assembly must request the Legislative Counsel to prepare an amended digest and cause it to be printed on the first page of the bill as amended. The digest must be amended to show changes in the existing law that are proposed by the bill as amended, with any material changes in the digest indicated by the use of appropriate type.
Under the Joint Rules, in a bill amending or repealing a code section or a general law, any new matter is underlined, and any matter to be omitted is in type bearing a horizontal line through the center and commonly known as “strikeout” type. When printed, the new matter is printed in italics, and the matter to be omitted is printed in “strikeout”.
In an amendment to a bill that sets out for the first time a section being amended or repealed, any new matter to be added and any matter to be omitted is indicated by the author and is printed in the same manner as though the section as amended or repealed was a part of the original bill and was being printed for the first time.
When an entire code is repealed as part of a codification or re-codification, or when an entire title, part, division, chapter, or article of a code is repealed, the sections comprising the code, title, part, division, chapter, or article are not set forth in the bill or amendment in strikeout type.
Urgency bills require an urgency clause which consists of a statement of the facts constituting the necessity for its immediate effect. The facts constituting an urgency require that they be related to and necessary for the immediate preservation of the public peace, health or safety. Such a statute may not have an immediate effect unless the urgency section and the bill each receive, upon a separate rollcall vote entered in the Daily Journals, a two-thirds vote of the membership of both houses.
Under the Joint Rules, a bill may not add a short title that names a current or former Member of the Legislature. In addition, a bill or resolution may be authored only by a Member or committee of the house of origin. Members or committees that are not of the house of origin may be “principal coauthors” or “coauthors.” A bill may not indicate in its heading or elsewhere that it was introduced at the request of a state agency or officer or any other person. A bill may not contain the words “By request” or words of similar import.
What to Look for in a Bill
The text of a bill provides valuable information on a variety of aspects about a piece of legislation. By looking at information such as the bill type, the author, the introduction date, title, the digest, and the actual proposed law, you can tell a lot about the journey the bill will take through the Legislature.
Authors and Co-authors
Knowing the authors and co-authors provides you with information on who to contact in support of or opposition to the bill. Also knowing information about the author, such as his or her background, committees serving on, political party, and political clout can allow you to predict the success of the measure.
The introduction date tells you when to expect action to begin. Bills must be in print for 30 days before any action can be taken (unless the rule is waived by the house). This allows interested parties time to prepare information on these bills, working with authors on amendments, complaints or suggestions.
The title identifies the sections of law that are affected by the bill. These sections inform you of the status of existing law and let you know how the existing law will be changed by this bill. These sections can also serve as a key to other bills affecting the same area, as well as aid in determining which policy committee a bill may be referred to.
Legislative Counsel’s Digest
The Legislative Counsel prepares a nonpartisan summary of each piece of legislation. This summary may act as a short cut for screening bills. Also provided at the end of the Digest are important pieces of information (called the “keys”) such as whether the bill has a fiscal impact, an appropriation, contains an urgency clause, the vote requirements for the bill, and whether or not the bill includes a state-mandated program.
Keep in mind that every time a bill is amended, a new version of the bill will be printed. Any text that has been deleted from the previous version will be in strikeout type and any new text will be in italics. Remember that the changes reflect only those changes from the previous version -- not the introduced version. Check the top of the bill in order to be sure you have the most recent version of the bill. You can also check the History for the most recent amendment date.
Understanding Technical Amendments
In the California Legislature, there are technical and substantive amendments that are made to bills, whether by the bill’s author or by the committee or floor considering the particular measure. While substantive amendments deal with the core of the bill, there are also important technical amendments that need to be made to legislation sometimes to ensure that the bills are properly enacted into statutes.
According to California’s Legislative Counsel, an amendment is a proposal to change the text of a bill after it has been introduced. Amendments must be submitted to the Legislative Counsel for drafting or approval. The use of chaptering amendments, double-jointing language, and contingent enactment language is often misunderstood in the legislative process.
Chaptering-Out refers to when provisions of one chaptered bill amend the same code section(s) as another chaptered bill does. The bill with the higher chapter number prevails over the lower chapter number bill. Chaptering Out can be avoided with the adoption of "double jointing" amendments to a bill prior to passage by both houses of the legislature and signature by the governor.
Double-Jointing requires technical amendments prepared by Legislative Counsel that will prevent the amended bill from "chaptering out" the provisions of another bill. According to Legislative Counsel, “double-jointing amendments to a bill provide that the amended bill does not override the provisions of another bill, where both bills propose to amend the same section of law.”
Contingent Enactment Amendments
Observers should also be aware of “contingent enactment language,” which is language that connects two bills so that one bill will not become operative unless the other bill also takes effect.
An example of this language was contained in AB 1676 from the 2016 Session:
SEC. 3. Section 2.5 of this bill incorporates amendments to Section 1197.5 of the Labor Code proposed by both this bill and Senate Bill 1063. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2017, (2) each bill amends Section 1197.5 of the Labor Code, and (3) this bill is enacted after Senate Bill 1063, in which case Section 2 of this bill shall not become operative.
How is contingent enactment language distinguished from double-jointing language? Contingent enactment language connects two bills that one bill does not become operative unless another bill also takes effect, even if it has passed both houses and is signed by the Governor.
On the other hand, double-jointing occurs when two bills amend the same code section but in different ways and the Legislature wants both bills to be enacted. In such a case, technical amendments are drafted which add provisions to the bill that would make all of the changes in a section of a code if each bill is chaptered. Double-jointing prevents the problem of chaptering out.
The Unseen Part of Passing New Laws
There is an important part of the legislative process that occurs out of public sight and is generally not known or understood in the California legislative process. After the two houses of the Legislature pass a bill, but before the passed bill reaches the Governor’s Desk, a bill goes through a very important process -- engrossing and enrolling. Engrossing also occurs after each amendment to a bill.
When a bill has been amended, only the engrossing process takes place. However, after a bill passes both houses of the Legislature, then engrossing occurs first and is followed by enrolling. These are two separate and distinct activities. As mentioned, engrossing can occur even before a bill has passed either floor of the Legislature. Enrolling, on the other hand, only occurs after a bill has passed both houses.
In the “engrossing” stage, there is a comparison of the printed bill to assure its likeliness to the original bill and that the bill's amendments were properly inserted into the measure. After being proofread by staff to assure the amendments were done properly, the bill is “correctly engrossed” and is, therefore, in proper form. The official proofreading also follows Second Reading and/or the adoption of any amendments to the bill.
In the “enrolling” stage, as explained by the Assembly Chief Clerk, an “enrolled bill” is one that has passed both houses of the Legislature and has been ordered enrolled. In enrollment, the bill is proofread for accuracy and then delivered to the Governor for final action. The enrolled version of the bill contains the complete text of the bill with dates of passage, as well as certification by the Senate Secretary and Assembly Chief Clerk.
Enrollment concludes when the bill has been presented to the Governor and resolutions are filed with the Secretary of State. An enrolled bill that has been approved by the Governor contains the signatures of the Governor, Secretary of the Senate, and the Chief Clerk of the Assembly certifying the bill's authenticity. That signed bill becomes the chaptered version.
Both the Assembly and Senate have a nonpartisan unit responsible for proofreading all forms of measures. These Units also prepare and deliver bills to the Governor for consideration. Both the Assembly and Senate have an Engrossing and Enrolling Clerk and each house engrosses its own bills.
During this engrossment process, the Engrossing and Enrolling Clerk is authorized to make technical corrections and changes in the printed bill and may also send “queries” to the Legislative Counsel Bureau when, in his or her professional estimation, there is a drafting error in the text of, or amendments to, a bill.
The Formal Process
After a bill has passed both houses, the bill is returned to the house of origin. If the bill has not been amended by the other house, it is immediately sent to the Engrossing and Enrolling office of the Assembly Chief Clerk’s Office (if it is an Assembly bill) or to the Committee on Rules in the Senate (if it is a Senate bill), to be enrolled. If, however, the other house has amended the bill, then the amendments must first be concurred in before the bill may be sent to enrollment.
After enrollment and signature by the Secretary of the Senate and the Chief Clerk of the Assembly, or their designees, constitutional amendments, as well as concurrent and joint resolutions, are filed with the office of the Secretary of State. Thereafter, the time of filing is reported to the house of origin, and the record is entered in the Daily Journal. These measures are not acted upon by the Governor.
In addition, enrollment is the final legislative action taken on a bill before it is presented to the Governor. When the enrolled bill is delivered to the Governor, it is endorsed by the Private Secretary of the Governor or by some other individual designated by the Governor, whose identity the Governor must make known to the Speaker and the President pro Tempore.
The Engrossing and Enrolling Clerk will engross and enroll all bills that come to his or her hands for that purpose, in compliance with the provisions of Section 9503 of the Government Code, and in the order of time in which the bill has been acted upon by the Assembly or Senate.
In the Assembly, after final passage by both houses, any Assembly bill not amended by the Senate shall be ordered by the Speaker to be enrolled, as provided in Sections 9508 and 9509 of the Government Code. The Chief Clerk reports both the day and hour each enrolled bill is presented to the Governor, which report is entered in the Daily Journal.
Under the Joint Rules of the Assembly and Senate, after a bill has passed both houses it is printed in enrolled form, omitting symbols indicating amendments, and is compared by the Engrossing and Enrolling Clerk and the proper committee of the house where it originated to determine that it is in the form approved by the houses.
Enrolled Bill Rule
In general, the judicial branch is loath to review the record keeping practices of the Legislature to determine the validity of statutes. This limitation on judicial inquiry is known as the “Enrolled Bill Rule” and this legal doctrine holds that, if an act of the Legislature is “properly enrolled, authenticated and filed,” then it is presumed that “all of the steps required for its passage were properly taken,” and “even the journal of the Legislature is not available to impeach it.”
The reasoning behind this judicial limitation is that the judicial branch should not impinge on the constitutionally enumerated power of the legislative branch to govern its internal affairs. Despite some critics of this legal principle, as recently as 2009, courts have concluded that this Rule is still “in full effect in California.”
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About the Author
Chris Micheli is an attorney and legislative advocate with the Sacramento governmental relations firm of Aprea & Micheli, Inc. He served as an Adjunct Professor at McGeorge School of Law where he teaches in their Capital Lawyering Program. He can be reached at email@example.com or (916) 448-3075.