This summer, the Los Angeles Democrat ushered through the Legislature a measure that substantially amends in advance the ballot measure’s ammo regulation provisions — a move a Prop. 63 spokesman at the time called “sickeningly cynical.”   

For about a year now, de Leon has been in a political feud with Lt. Gov. Gavin Newsom, Prop. 63’s primary proponent. The two fought over who had better ideas for gun and ammo control and what lawmaking avenue was more appropriate: the Legislature or the Ballot Box. And at least for now, de Leon won. 

None of this was mentioned in the endorsement. 

“Earlier this year, our Legislature passed the most sweeping and important package of gun safety laws in the nation, increasing nationwide momentum and grass-roots outcries for common-sense safeguards against gun violence,” de Leon wrote in a statement. “I endorse Proposition 63 because we must send a powerful and united message to the national Gun Lobby that California will not capitulate to political bullying or compromise the public safety.”

Critics cry foul

Republicans in the Assembly tried to fight de Leon’s bill as it moved through the Legislature, arguing on procedural grounds, and were easily overruled. In an interview this week, Assemblyman James Gallagher, an attorney by trade, called de Leon’s actions “ridiculous,” adding the Los Angeles Democrat is “trying to change what might be the will of the voters.”

“The voters are being asked to vote on something right now that, if passed, [the Legislature is] going to change the language,” said Gallagher, a Nicolaus Republican.

Gallagher opposes both Prop. 63 and the de Leon bill, but said the procedure matters: “Is that the kind of precedent that we want to set?”

Legal analysis

But, in fact, it may be legal.  

“I don’t think I have seen this before, but it looks legit to me,” said Frederic Woocher, an elections law specialist at the Los Angeles law firm Strumwasser and Woocher, who has no connection with either the ballot measure or the legislation. 

Prop. 63 does allow for legislative amendments, as long as they “further the purposes” of the measure and pass by at least 55 percent. According to Woocher, since the Legislature has the power to amend the measure, and since the legislation won’t go into effect until after Prop. 63 would pass, this is akin to passing the legislation next year — like postdating a check. 

“Under this admittedly unusual circumstance, I believe it would constitute a valid amendment to Prop. 63 under the initiative’s provisions allowing for amendments (again, this assumes that it ‘furthers the purposes’ of the initiative),” Woocher said. 

But is it transparent?

Where Gallagher and Woocher disagree most though, is whether the Legislature’s move is transparent. Gallagher said that the voter-fatigue inducing, 17-measure ballot and accompanying voter guide already make the process cumbersome on voters — adding pending legislative amendments makes matters worse.

“It’s bad enough that you have this huge voter pamphlet; let alone to have to go ‘Oh, well, also the Legislature may have passed a bill that’s going to change this language,'” Gallagher said.

But Woocher argued that because the Legislature took action prior to the November election, and the Legislative Analyst’s Office was able to consider the amendments in its analysis, interested voters will have the opportunity to become fully versed.

“The amendments may not be reflected in the title and summary per se … but I think it is not unreasonable to expect interested voters to review the entire Voters’ Pamphlet, which includes the Leg Analyst’s more in-depth and explanatory analysis of the expected impacts of the measure’s passage,” Woocher said. 

A spokesman for Kevin de Leon did not respond to multiple requests for comment.

The bill’s sponsor, Assemblywoman Lorena Gonzalez, took to Twitter to show her exuberance, especially after having been named in Politico’s national list of 50 “thinkers, doers and visionaries transforming American politics in 2016,” which called the San Diego Democrat a “progressive ideas lab” (partially for this bill).

Si se pudo! Farmworker overtime!!! We did it @UFWupdates! Thank you to the leadership in both houses & this Gov! https://t.co/GPe0t9tY0T

— Lorena Gonzalez (@LorenaSGonzalez) September 12, 2016

Farmworkers currently earn overtime pay past 60 hours in a work week and past 10 hours in a work day. But starting in 2019, the threshold will lower incrementally until 2022 when workers will earn time-and-a-half pay beyond 40 hours in a week and eight hours in a day under the new law.

Contentious debate

Democratic supporters often argued that passing this measure was a matter of “fairness,” while detractors, mostly Republicans, said farming isn’t like other professions, as it’s susceptible to uncertainty caused by weather delays, perishable goods, seasonal schedules and external price setting. 

“It’s the same old story of a government that is out of touch with the reality of living, working and doing business in California,” Assemblyman James Gallagher, R-Nicolaus, said in a statement.

“If you understand agriculture, you know that this new law will result in lost wages for farm workers,” added Gallagher, who is a partner in his family’s farming business. “There are no real winners with AB1066.”

The matter wasn’t a simple partisan issue, though. Many Democrats either voted against or didn’t vote earlier this year when the measure was defeated.

But through a controversial procedural gimmick known as a “gut and amend,” which circumvents the chamber’s rules, Gonzalez was able to bring the bill back to life. And, with the help of the United Farm Workers, she rallied enough Democratic support for passage.

Of course, even that wasn’t so simple. Days before passage, Gonzalez had brought UFW members to the Capitol for an early morning show of support and to watch the vote from the galleries.

However, there still wasn’t enough support and Gonzalez and Assembly Speaker Anthony Rendon suffered an embarrassment when the floor session ended without a vote. But after proponents spent the next few days whipping votes, the measure passed.

Democratic Assemblymembers Susan Eggman of Stockton, Jacqui Irwin of Thousand Oaks, Marc Levine of San Rafael and Jim Wood of Healdsburg did not vote.

Senate Bill 32 would require the Air Resources Board to ensure that greenhouse gas emissions in the state are reduced at least 40 percent below 1990 levels by 2030. Essentially, the bill builds on its predecessor, AB32, which required the ARB to achieve 1990 levels by 2020. 

To achieve these goals, the measure would continue to give the ARB the authority to create and implement regulations with blanket legislative approval, which has been one of the main critiques of the current program.

The most controversial measure taken by the ARB thus far has been the state’s cap and trade auction program, which a pending lawsuit argues imposed an illegally-passed tax on businesses.

While the Assembly was voting on SB32, the ARB released the results of the most recent cap and trade auction, which missed its target again by selling around one-third of the available emission credits. 

State of play

One slight legislative hurdle still in SB32’s way is a provision that it’s only effective if another measure, AB197, becomes law as well. This companion bill would create a legislative policy committee to oversee the ARB and adds two legislators as non-voting members of the board.

AB197 cleared the Senate on Monday and heads back to the Assembly for a concurring vote. Like SB32, its toughest test is behind it, although it’s still vulnerable in the Assembly — and opponents know it.

The climate battle isn't over yet — oil companies are trying to target #AB197, which is tied to #SB32. @melmason: https://t.co/I5A2ofmoTC

— Chris Megerian (@ChrisMegerian) August 23, 2016

On Tuesday, legislators argued the pros and cons of the measure, largely along party lines. Republican Assemblyman James Gallagher of Nicolaus argued that the state’s environmental policies have hurt businesses and job creation, particularly in the oil and gas sector and among truckers.

Questionable process

Assemblyman David Hadley, a Torrance Republican, decried the bill as a gut-and-amend that hadn’t been fully debated in a policy committee.

“Observe the basic procedural tenets,” Hadley said.

Gut and amend is a procedural maneuver used to circumvent the normal legislative process that’s especially popular during the end of session. A measure to be considered by voters in November would curb the most egregious abuses of gut and amend.  

Toxic air 

Proponents largely made arguments that passing SB32 was the right thing to do. Assemblyman Jimmy Gomez, D-Los Angeles, complained about growing up in Riverside and often being unable to see Big Bear just mere miles away through the smog, or not being able to play outside as a result of negative quality warnings.

A recent report suggested that the greater Los Angeles area has the most toxic air in the nation, causing around 1,341 deaths annually. 

Accountability

Speaker Anthony Rendon talked up the increased accountability measures in AB197. 

“With SB32, we continue California’s leadership on climate change, we keep making sure our air gets cleaner, and we ensure the economic and environmental benefits of our efforts reach all California communities,” the Paramount Democrat said after the vote. “To ensure those goals are achieved, we must also pass AB197 to ensure greater legislative oversight, as well as agency accountability and data transparency from the California Air Resources Board.”

The levels

For what it’s worth, total GHG emissions in 2014 (the most recent data) were 441.5 million metric tons of carbon-dioxide equivalent, and the target by 2020 is 431 MMTCO2e.

In 2007, around AB32’s passage, greenhouse gas inventory reached 479.74 MMTCO2e. This is according to data provided by the ARB.

The Legislature passed 11 bills in all, six of which were signed into law by Gov. Jerry Brown and the rest vetoed. But one is fraught with peril as it circumvents the Elections Code by amending a November ballot initiative regulating ammo sales. 

The difference between how the bill, sponsored by Senate President Pro Tempore Kevin de León, D-Los Angeles, and the ballot measure, sponsored by Lt. Gov. Gavin Newsom, regulate ammo sales is not substantial. But Democrats have had a hard time providing legal justification for going around Section 9034 (c) in the Elections Code, which says the Legislature does not have the authority to “alter the initiative measure… .”

Republicans tried

Assembly Republicans tried raising the issue just before final passage, but were brushed aside.

“Don’t we have a statutory or Constitutional problem in amending something that hasn’t even become law yet and is proposed to go to the voters for a vote,” asked Assemblyman James Gallagher, R-Plumas Lake.

Assemblyman Kevin Mullin, who was presiding at the time, said the Legislature had the authority under “the initiative process and statute.” The San Mateo Democrat, however, was unable to identify a particular law or statue, offering instead that legislative counsel said it was OK.

Assemblyman Don Wagner tried next.

“I think you’re wrong,” the Irvine Republican told Mullin, citing the Elections Code. Wagner appealed the ruling, saying the Legislature was “trampling the will of the people,” who signed a ballot measure without de León’s amendment, adding that the Legislature was “acting illegally and in violation of the Elections Code.” Assembly Democrats pushed forward and Wagner was overruled.

Attempts to get justification 

According to documents provided by de León’s office, legislative counsel did not review the legality of the measure. Instead, legislative counsel issued an opinion on how the amendment would affect the ballot measure.

No legal justification for the law has been provided to CalWatchdog, although de León’s office pointed to an instance from 1990 when the Legislature amended Prop. 129. The measure failed by a wide margin, however, and CalWatchdog has been unable to find a legal ruling setting precedent.

Language in the measure

Next, de León’s office pointed to a provision in Newsom’s ballot language stating: “The provisions of this measure may be amended by a vote of 55 percent of the members of each house of the Legislature and signed by the Governor so long as such amendments are consistent with and further the intent of this Act.” But it’s unclear if the legislative intent of that passage is referring to before or after the measure becomes law, although that’s likely irrelevant. Until the ballot measure is approved by the voters (if it is approved by voters) it has no force of law.

And if the legislative intent was to allow the legislature to amend the measure’s language prior to a vote of the people, it’s unlikely that Newsom or any other ballot initiative proponent has the power to temporarily rewrite the Elections Code.

Proponents have a period to amend pending initiatives, but that period ended a while ago.

Lack of accountability

The attorney’s general office has not responded to requests for comment. Gov. Jerry Brown signed the bill into law last week, but his office deferred to de León.

A spokesperson for the ballot initiative said proponents were focused on getting the measure passed and did not say if they would challenge the law.

Newsom/de León fued

In recent weeks, the Newsom/de Leon feud has spilled out into public, with a Newsom spokesman calling the move “sickeningly cynical.”

“Is (de León) someone who truly respects the will of the voters and wants to reduce gun violence or is he merely a self-serving cynic completely consumed with petty personal grudges,” spokesman Dan Newman told The Sacramento Bee. 

De León has had it out for Newsom for a while over the gun issue. When Newsom announced plans to introduce the measure last year, de León — who’d made background checks for ammo purchases a pet priority — slashed the size of Newsom’s staff.