Bob Stern, co-author of the state’s Watergate-era political reform bill in 1974, reviewed the proposed measure in detail and highlighted public support for looking more closely at lawmakers’ interactions with lobbyists. as well as more information on legislative inquiries.
“The public is always in favor of more disclosure and more transparency,” Stern said in an interview. “So that’s what these supporters have going for them is that it’s for more transparency, more disclosure. And who could be against that?
A longtime watchdog of government ethics, Stern warned that it could become onerous for lawmakers to have to check in with everyone they meet to find out if — or for whom — someone might be lobbying. But he said he found no “fatal flaws” in the proposal when shown an early draft.
The amount of disclosure would be a painful pill for elected officials and government officials to swallow. But it could also give leading Democrats a powerful point of contrast with rival states such as Florida, which has historically had a strong public records law but under Republican Gov. Ron DeSantis has sought to invoke ‘executive privilege’. . hide records amid backlash from the media and public interest groups.
The new California proposal would dramatically expand the definition of public records to include records kept by private vendors and contractors regarding their work on behalf of the state – a risky gamble on the part of the initiative’s proponents as it could incentivize businesses or other third-party groups to spend money against the measure.
The proposal comes from the Consumer Watchdog group, an organization that itself grew out of a ballot measure – a 1988 initiative designed to curb abuse by insurance companies. The group consulted with a task force of legal and government ethics experts, including attorney Kelly Aviles of Californians Aware, and said it had budgeted $5 million to ensure the proposed overhaul qualifies for the statewide ballot next fall. An internal poll conducted by Paul Maslin and Rick Sklarz found it starts with strong majority support from voters of all parties and ideologies.
Jerry Flanagan, the litigation director at Consumer Watchdog who helped draft the initiative, suggested it would be foolhardy for opponents to side with less transparency. “It seems like one of those rare initiatives where all you have to do to win it is qualify it,” he said.
However, there will undoubtedly be disagreement on the necessity of such a measure. Officials across government have long cited high costs and understaffing as reasons for long delays in obtaining and releasing public documents. As part of the initiative process, the new proposal would get an estimated price.
But many organizations have long complained that the state open archives law is also riddled with loopholes to the point of being outdated. They took particular aim at a separate set of rules that govern legislative disclosure — arguing that lawmakers deliberately created a system for the rest of the state to follow and weaker rules for themselves to circumvent scrutiny.
Under the new proposal, called the Open Government Act, lawmakers would have to disclose lobbying meetings, fundraising events and public events on their websites, while the legislature would be required to publish related records. misconduct investigations. Their records should be kept for at least five years — an effort to prevent their phasing out — and then be subject to state archival laws.
State agencies would be subject to similar retention periods, as would cities and counties, which generally have a two-year minimum retention, although records such as emails are sometimes purged earlier.
A host of other provisions would become law that proponents say are necessary to ensure the state conducts thorough and timely searches of records and discloses in detail why it cannot comply, if that is its determination. .
The measure also addresses particularly vexing issues around the disclosure of sexual harassment and disclosures of workplace misconduct. After news outlets threatened legal action over records following a series of Capitol MeToo scandals, the Legislature said in 2018 it would voluntarily release certain documents — well-founded allegations against lawmakers or staff. high level.
This initiative would enshrine that disclosure in law and go further, requiring that all investigations — not just those found to be founded — be publicly available, as long as they are not found to be frivolous.
The 29-page proposal would also:
- Set a 30-day clock for agencies to provide requested documents, unless they are prevented from doing so by extraordinary circumstances. They should also post contracts with suppliers on their respective websites.
- Confirm that those suing public agencies have the same access to discovery as they would with any civil lawsuit.
- Prevent companies from bringing preemptive lawsuits to deny records and limit public agencies’ use of “attorney-client” privilege and the so-called attorney’s work product doctrine.
- Require the publication of annual reports on delays in access to public records.
- Amend the existing law by providing that only inter-agency communications are potentially protected. This would mean, for example, that communication only within the governor’s office would potentially be protected. However, communication with people outside the government would not.
Proponents argue that the public has a right to know who influences public policy decisions. They added that only communications prior to the making of a government policy decision would qualify for deliberative process privilege.
Changes to transparency rules could significantly reshape the legislative process in California, which may explain why efforts to increase transparency through the legislature have repeatedly failed. In 2019, Governor Gavin Newsom vetoed a bill that would have required state agencies to retain emails for two years. The measure, he wrote, failed to strike the “right balance” between transparency and the costs associated with greater record retention.
A similar bill last year that didn’t receive a single “no” vote when it passed through the Legislature was killed by the Senate Appropriations Committee.
“Lawmakers voted unanimously for the bill because they know, as every one of their constituents knows, how inexpensive it is to back up their data and emails online,” said former Assemblyman Marc Levine (D-Greenbrae), who drafted the measure. “How to restore confidence in the government? It’s with sunlight,” Levine added.
A recent precedent was a 2016 ballot initiative that targeted behind-the-scenes deals that arose in the final hours of the legislative session. This measure, Proposition 54, required that all bills be posted online for at least 72 hours before getting a final vote. He was championed by Charles Munger Jr., a former GOP megadonor who poured more than $10 million into the “yes” campaign. Then Lt. Governor Newsom was one of the few Democrats to endorse the proposal, putting him at direct odds with allies such as the California Democratic Party and the California Federation of Labor.
The opposition’s meager effort – which raised less than $28,000 and argued for the status quo – was beaten at the polls. Californians approved the initiative by a 30-point margin, effectively stifling last-minute deals on Capitol Hill and forcing the governor, lawmakers and outside special interests to adapt their own strategies in turn.
This time, however, supporters may face a more vigorous opposition campaign. By extending transparency rules to entities doing business with the state (in particular, requiring the state to collect and retain such records), funders run the risk of being pushed away by deep-pocketed corporations.
It would be familiar territory for Consumer Watchdog, which has battled it out with wealthy opponents before. The group landed its signature 35 years ago with a ballot measure that rolled back auto and home insurance rates and expanded state regulation of insurers. He fended off a then-record $60 million opposition campaign from the insurance industry.
Other uphill battles, such as a 2014 effort to allow state regulation of medical plan prices, ended in defeat in the face of heavy corporate spending.
Consumer Watchdog has also come under fire from critics for using its nonprofit status to legally protect the identities of its donors, even as it pushes for more corporate and government transparency. Group officials note that they have disclosed some major backers and other sources of income. But they generally argue that the government itself needs to step up its efforts.
“Laws that apply to California’s public records — which apply to agencies and the legislature — are being abused,” Flanagan said. “Working on behalf of the people by government agencies requires an increased standard of transparency. And we’re the best group to call it because we advocate these issues and worked with a group of prominent open government advocates to draft the text.