Democracy in the dark: How California lawmakers are trying to shield themselves from public view

At town halls across the nation, including in California, residents have confronted their members of Congress face-to-face to voice their fears and frustrations over Trump administration policies, from cuts to overseas aid to Medicare.

Meanwhile, lawmakers in the state Legislature have introduced about a dozen proposals that would make it harder to confront your local officials at public meetings and would shield more information from the public eye, according to an analysis of CalMatters’ Digital Democracy database.

The bills follow a streak of California officials’ attempts to shroud themselves in secrecy.

Gov. Gavin Newsom recently sent burner phones to major California business leaders with his number preprogrammed — paid for by his nonprofit, allowing him to communicate with executives without having to disclose the content publicly. Lawmakers and government employees signed non-disclosure agreements preventing them from sharing details about taxpayer-funded renovations to the state Capitol. The Legislature refused to say whether federal search warrants and subpoenas were served to lawmakers. 

The largely Democratic efforts have raised alarms among ethics advocates and an outcry from some Republican lawmakers, such as Assemblymember Carl DeMaio of San Diego, who has introduced two bills to require lawmakers and government agencies to disclose more to the public, not less. 

He announced them during National Sunshine Week, an annual campaign to promote government transparency that the Legislature quit observing eight years ago.

“It is the one time throughout the year where we pause and we ask the question: Are decisions in government being made in the public light? Can the people know what’s going on?” DeMaio said. 

Looking decision-makers in the eye

Sen. Roger Niello, a Republican from Roseville, has contended that interacting with constituents in-person makes a difference: There’s nothing more thrilling for a local elected official than having constituents exercise their right to yell and scream at you, he said in 2023 opposing a proposal that allows neighborhood councils in Los Angeles to meet remotely until 2026. 

“It’s just much more impactful,” he said. “It’s like the difference between a text message and a phone call. Text messages are useful for quick communication of something, but not for something more complicated.” 

Nonetheless that proposal was signed into law — one of many over the past few years that have increasingly allowed state and local officials to participate remotely. This year, various legislators are pushing at least six different measures that aim to make them permanent.

Since the pandemic, California has relaxed its once-strict rules that required officials to be physically present at public meetings. Instead they’ve carved out more exceptions so that advisory board members can meet remotely, and public officials can avoid disclosing their whereabouts when they appear virtually.

Supporters of these efforts say they “modernize” the state’s open meetings rules, arguing that allowing members more remote access boosts public participation, cuts costs, protects officials’ privacy and grants more flexibility in emergencies.

Under the relaxed guidelines, 41 state boards reported increased attendance among board members, according to a June 2021 report by the Little Hoover Commission, a state oversight agency that focuses on government efficiency. 

But good government advocates argue that it shields officials from their constituents. 

“Public officials must be accountable: They should be required to attend in person, ensuring that the public can see them, speak to them directly, hold them responsible for decisions that impact their communities,” Dora Rose, deputy director of the League of Women Voters of California, told legislators at a recent hearing. 

One of this year’s pending bills is SB 707 by Sen. María Elena Durazo , a Democrat from Los Angeles who last year opposed an effort to let local advisory boards meet remotely. This year she’s proposing an overarching measure that would include exemptions for different groups.

Durazo told CalMatters she was compelled by testimony from groups who had to cancel meetings because they couldn’t gather enough members in person. 

Her bill would also require city and county governments to provide a call-in option to all public meetings. But during a recent hearing, representatives of city officials argued that would hamstring local governments’ ability to manage “Zoom bombing,” where participants disrupt meetings with “hate speech.” 

Keeping donors secret

The California Fair Political Practices Commission — the state agency policing ethics and campaign finance violations — is sponsoring AB755 to give officials more time to disclose funds they raised for other groups. 

Those funds are called “behested payments,” typically donations to a nonprofit or government agency that come at a politician’s behest. Critics say the donations allow special interests to curry favor with politicians. Since 2011, state officials have reported raising more than $505 million in behested payments, with Newsom single-handedly raising more than $200 million from corporations in 2020. 

Current law requires elected officials to disclose these payments within 30 days once they raise more than $5,000 from the same donor within a year. But violations are commonplace: Six out of eight of California’s constitutional officers have reported their payments late, including Newsom, who was fined $13,000 for failing to disclose $14 million on time.

The legislation introduced by Assemblymember Mike Fong, a Democrat from Alhambra, would give lawmakers up to roughly 120 days to disclose the payments, making it harder for voters to know who is influencing their lawmakers in real time. Commission spokesperson Shery Yang told CalMatters the current filing period is too short and extending it “improves efficiency.”

After meeting the initial $5,000 threshold for disclosure, officials would be allowed to receive up to $999 from that same donor without ever disclosing it.

A related bill — SB 760 by Sen. Ben Allen, an El Segundo Democrat — would let elected officials stop reporting funds they raised for nonprofits on TV or radio, or even in speeches like private fundraisers, if they don’t benefit financially from those payments or don’t know their fundraising efforts led to the contribution. Allen said the change is needed so officials aren’t afraid to name specific groups to donate to, especially after a disaster like the Los Angeles fires. 

Also seeking to relax the state’s campaign ethics rules is SB 300 by Sen. Steve Padilla, a Chula Vista Democrat. Public officials wouldn’t have to recuse themselves if they are making policies that would boost the membership of organizations they’re part of, such as unions or chambers of commerce. 

Other proposed legislation would also reduce the amount of information disclosed to the public. 

• AB 950 by Lakewood Democrat José Solache would allow campaigns to stop disclosing their top funders on printed ads and refer to a website instead.
• AB 359 by San Bernardino Democrat James Ramos would allow the state campaign finance commission to stop reporting on its enforcement of local ethics rules. 

‘What they want is carte blanche authority to police in secret’

While the state’s public records laws already are riddled with exemptions, politicians are still trying to create more. 

Perhaps the biggest exception the Legislature created is for itself. In 1975, it wrote its own rules that vastly restrict what it must release to the public, shielding notes to members or staff, records of complaints or investigations, and anything else it deems not in the public’s interest to know.

This year — after a 2018 law forced police agencies to be more transparent about their records — Downey Democratic Assemblymember Blanca Pacheco wants to roll some of that back. Her bill would give law enforcement agencies more leeway to keep some information private, such as the ranks, names and photos of officers who work undercover, are part of a state or federal task force, or who received death threats in the last decade due to their work.

“I just want to protect these undercover officers so that they can continue doing their work and keeping our communities safe,” she told CalMatters.

Tiffany Bailey, a staff attorney for the American Civil Liberties Union of Southern California, said the legislation undermines the progress made on police transparency. Police agencies already have ways to redact information, she said, but law enforcement agencies must explain why. 

“What they want is carte blanche authority to police in secret, to shield from the public eye really egregious police misconduct, like sexually assaulting civilians and serious uses of force,” Bailey said. 

David Loy, legal director of the First Amendment Coalition, said California already lags behind other, more conservative states in what is released. 

“There’s all kinds of qualifications and exemptions and opportunities to put sand in the gears and delay disclosure, and it’s still a pretty limited set of documents you get,” he said. 

Often, local and state agencies have only released records when a court forced them to do so..

Loy’s group is also concerned about a proposal from Long Beach Democrat Josh Lowenthal that would make it a misdemeanor for someone to “knowingly” post an elected or appointed official’s home address or telephone number, if they intend the posting to cause harm.

Lowenthal declined an interview with CalMatters, but said in a statement that elected and appointed officials have faced harassment or violence in recent years and this would “allow them to limit the proliferation of their information.”

Loy countered that the bill, while still in its early stages, is overly broad.

“There are controversies over whether someone is a resident of the jurisdiction that they are elected to represent, and the press and public have a right to know the relevant information,” he said.

Let the sunshine peek in?

There are a few glimmers of hope for public access, though.

Under Democratic Assemblymember Avelino Valencia’s proposed AB 1029, elected officials would have to report if they own cryptocurrency. 

DeMaio, the San Diego Republican, is also reintroducing an idea to create an independent office to help people fight public records denials. Newsom vetoed a similar bill in 2023, saying it was unnecessary and costly. 

Currently, the only way to appeal a rejected Public Records Act request is to sue — something not everyone can afford to do. 

“Let a neutral third party determine whether a document is so sensitive that the public interest would be benefited by keeping it a secret,” DeMaio said.

He also introduced a bill to make the Legislature follow the same California records act as other public agencies and touted his Rocklin Republican colleague Joe Patterson’s AB 1370, which would prohibit state lawmakers from entering into most non-disclosure agreements related to their decision-making, such as the Capitol renovation project.

“There is no justification for an elected official signing an NDA with a special interest, full stop,” he said.