Capitol shrinks transparency and accountability

When Jerry Brown became governor in 1975, succeeding Ronald Reagan, the Capitol experienced something of a political culture shock.

Brown stocked his administration with young poverty warriors, civil rights attorneys and labor unionists who immediately began undoing what Reagan’s conservative regime had wrought during the previous eight years. That meant rewriting, repealing or replacing countless “administrative rules” that the Reaganites had promulgated in many state agencies.

Very soon, the Brownies’ ideological shift to the left sparked a backlash, particularly from the business community, which eventually led to legislation to give the Legislature authority to reject proposed rules, a direct rebuke to Brown.

However, just as the legislative power grab appeared to be happening, Assembly Speaker Leo McCarthy interceded with a compromise — an Office of Administrative Law, empowered to review proposed rules and make certain they comply with the intent of the underlying legislation.

The OAL has gone about that work ever since. However, in recent years, the Legislature and governors have begun quietly bypassing the OAL by exempting some rulemaking from its review and, in some cases, exempting policies from even going through the normal rulemaking process altogether. Agencies are thus empowered to issue their decrees suddenly and without any opportunity for those affected to comment prior to promulgation.

We should thank lobbyist Chris Micheli for blowing the whistle on this trend. Micheli, a legislative process wonk, has written an article that catalogs how some legislative measures bypass the OAL and in some instances the Administrative Procedure Act (APA), which governs the process for writing and adopting rules.

He cites as an example, 2019’s Senate Bill 1, a blanket adoption in state law of all federal labor and environmental standards in effect prior to Donald Trump’s election as president. SB1 exempted this massive change in law, affecting virtually every business and every worker in the state, from both the APA and OAL oversight as an emergency action that would remain in place for six years.

Micheli writes: “What is the problem with creating an exemption from the APA? First, it means that the Legislature (a body that is accountable to the public) has delegated its authority to an executive branch agency that does not have to seek public input on its actions.

“Second, it means that notice and the ability to comment are eliminated for members of the public and the regulated community.

“Third, it means that an executive branch agency or department not only has authority to adopt regulations, but also that it does not even have to follow the statutory procedures for adopting those regulations.”

Unfortunately, bypassing rulemaking procedures and OAL oversight is not an isolated example of the pernicious tendency of Capitol politicians to limit both transparency and accountability as they issue decrees affecting the lives of nearly 40 million Californians.

For instance, after declaring a COVID-19 emergency nearly two years ago, Gov. Gavin Newsom has issued dozens, or perhaps hundreds, of orders, some unilaterally suspending state law but having the power of law themselves.

The state budget, now approaching $300 billion, is routinely written in secret by the governor and a few legislators and then enacted with minimal public notice. Many budget “trailer bills” make major changes in state policy with only cursory airing.

Legislative hearings on bills are now largely superficial exercises in which a few pro and con witnesses are given just a few minutes to state their cases and no one else is allowed to say anything other than name and organization.

It’s what happens when a Capitol is under total control by one party.