The work of the Office of Legislative Counsel is the ultimate seal of approval in Sacramento, an indispensable step for any proposal that becomes law in California — and perhaps why lobbyists and interest groups often privately ask legislators to have the taxpayer funded lawyers draft bills for them, too.
Those requests are known as “unbacked bills,” a term that broadly refers to draft laws with no guarantee of being introduced in either house of the Legislature. While some of these bills quickly find their way into the legislative bloodstream, others linger behind the scenes for weeks or months as part of the state Capitol’s opaque political currency, instantly ready for a public vote on any given day if the opportunity should arise.
No one denies the existence of these bills, but few will discuss either their content or their frequency.
“Unbacked bills are, in some ways, ghost bills that can come to life at any time in the process,” said Shaudi Falamaki Fulp, a former lobbyist who now works as a political and public affairs strategist. “The proposal will actually be drafted in legislative form, but it won’t be introduced with an author or a bill number.”
Interviews with a number of Capitol insiders, none of whom would speak on the record, portray the unbacked bills system as one with very few limits and in which legislative staffers sometimes submit proposals for vetting that their elected bosses would never publicly endorse.
As such, it’s also a system that neither the Legislature’s lawyers nor its two leaders will discuss.
No Limits On Unbacked Bills Submitted For Drafting?
Members of the Assembly and Senate are limited to 40 introduced bills in any two year session, but there are no limits on how many bills submitted for drafting to the Legislative Counsel’s attorneys. The system allows legislators flexibility, say some staffers, in order to better craft smart policies
But the process is also accessed by lobbyists, via legislative officials, who seek the help of the government’s bill writing experts. Legislative staffers and lobbyists, who spoke with KQED News on the condition that they not be identified, say an unbacked bill that comes back from Legislative Counsel may be “shopped” around in search of a different assemblymember or senator who’s willing to introduce it. Or, say insiders, these unpublicized bills are held on to for any possible opening a lobbyist or interest group might see — including eleventh hour maneuvers before the Legislature adjourns.
That lack of transparency poses problems, say some observers, for understanding where laws are coming from and who they benefit.
“Legislators are outsourcing their jobs to people in the shadows that we don’t know,” said Jessica Levinson, a professor of governance and ethics at the Loyola Law School in Los Angeles. “I think the least they can do is give the public some information.”
Requests For Information Denied
To better understand the process, KQED News asked legislative leaders and the Office of the Legislative Counsel for aggregate data on how many unbacked bills were drafted in the 2013-14 session in Sacramento, as well as how many unbacked bills had been requested by each member of the Legislature.
The requests were turned down. Legislative lawyers responded by saying any such information is exempt from either the California Legislative Open Records Act or the California Public Records Act, laws that were ostensibly designed to ensure government records be made public.
“They’re afraid of establishing some kind of precedent,” said Peter Scheer, executive director of the nonprofit First Amendment Coalition based in San Rafael about the refusal to release information on unbacked bills.
“They’re afraid that if they allow that information to come out, God knows, they might have to be more forthcoming about how they spend their time and the people’s money.”
Requests were also made of both Assembly Speaker Toni Atkins (D-San Diego) and Senate President pro Tem Kevin de León (D-Los Angeles) to either provide information or to weigh in on whether the records about unbacked bills should be released. Neither legislative leader responded to that request.
The anecdotes offered in numerous background conversations with legislative staffers suggest that while some offices ask attorneys to craft very few unbacked bills, others make requests by the dozens. And in some cases, say both staffers and lobbyists, an elected official may have little or no role in a staffer accepting a lobbyist’s request to have the proposed law vetted by taxpayer attorneys.
There’s general agreement that unbacked bills can serve a valuable service for less influential groups that don’t have the legal expertise to draft a bill. But it seems clear that powerful interest groups also ask for unbacked bills, and sometimes even multiple versions on the same topic, as a way of hedging their bets.
“Those well prepared lobbyists who have a Plan B and C will draft numerous versions and submit it through a legislative office,” said Falamaki Fulp, “to make sure that they’re ready when the opportunity presents itself.”
Exactly how much work these unbacked bills requires of the Legislative Counsel is unclear. Overall, the office — which not only drafts legislation but also offers more general legal advice — has seen its annual operating budget rise steadily. In the fiscal year that ends on June 30, the Legislative Counsel is expected to spend $92.7 million to provide legal services for lawmakers; that’s up from $81 million just five years ago.
The aggregate data that was requested — that is, total numbers of bills drafted over a two year legislative session — might have offered some way to compare the total output from the Legislature’s lawyers with the number of bills introduced (4,800 in the 2013-14 session).
In their April 27 rejection of KQED News’ records request, Legislative Counsel Diane Boyer-Vine and Chief Deputy Aaron Silva wouldn’t say whether any records existed — simply that any records which were germane “will not be produced.”