Cunningham co-authored a law that would have allowed prosecutors to sue big social media companies for addicting children and teens to their online platforms. Companies like Meta, which oversees Facebook and Instagram, hated the bill and deployed lobbyists to fight it.
Even so, it advanced easily through the Assembly and the Senate Judiciary Committees before landing in the Senate Appropriations Committee.
On Thursday, Aug. 11, Assembly Bill 2408 died there without a vote or any public explanation.
Twice a year, a legislative instrument called the suspense file leaves many lawmakers, lobbyists and members of the public seething. Appropriations committees in the Senate and Assembly use it to kill or quietly amend bills before they can reach the floor.
Cunningham, who is not running for re-election, will not have the chance to push his bill — a victim of the suspense file — through another legislative session.
“This one smarts,” he said. “I try to be professional about it, but I’ve certainly lost more bills than I can count in Appropriations. It’s always been a complete enigma to me.”
‘A Tale as Old as Time’
Proponents say the suspense file is a tool of efficiency, essential for screening the hundreds of bills that come through the legislature each year for their potential fiscal impact. Detractors call it a burial ground, used by lawmakers for decades to inter politically hazardous measures before they are forced to vote on them.
“This is a tale as old as time. Everybody knows there is a massive transparency problem at the heart of California’s legislative process,” said Jonathan Mehta Stein, executive director of California Common Cause, a good government watchdog.
It may be old hat for longtime members of the Capitol community, but Stein said that every time a new employee joins his organization, they are shocked to discover that there is a process where bills can be killed or amended with zero public scrutiny.
“It is just so established that it doesn’t get scrutinized in the way that it probably should,” he said.
Carmen Balber, of the group Consumer Watchdog, couldn’t hide her frustration after Assembly Bill 2370, requiring government agencies to retain records for a minimum of two years, died in suspense.
“The suspense file is one of the most undemocratic features of the California Legislature,” Balber said. “It’s known as a place that good bills go to die.”
Chris Micheli, a longtime California lobbyist who has written a book about the legislative process, said that while it’s true that suspense offers little in the way of public scrutiny, it isn’t the only way legislative leaders can bury bills to evade casting an unpopular vote. Bills can be denied a committee hearing date or simply languish without a committee assignment at all.
“So yes, as a general statement that criticism is true, but there are also other instances in the process where bills fail to proceed without an official vote of a committee,” Micheli said.
How Suspense Works
Bills that meet a certain fiscal threshold ($50,000 or more from the general fund or $150,000 or more from a special fund) are referred to the suspense file of the Assembly or Senate Appropriations Committee. However, committees also can refer to appropriations other bills that fall short of that fiscal requirement
Once a bill has been referred to the suspense file, the committee votes on whether to pass it along to the floor of either the Assembly or Senate, or else keep the bill held in suspense, effectively killing it.
There is no public testimony given during the Appropriations Committee suspense hearing, and no public vote is recorded from committee members. Bills often are amended while in suspense, but it is never made public who motioned for the amendment or how lawmakers voted on it.
Suspense Process ‘Anti-Democratic’?
Cunningham said he’ll never know why senators held AB 2408 in suspense.
One of his biggest questions is how it ended up in the Senate Appropriations — an Assembly Judiciary Committee report indicated it would not have a fiscal impact. (AB 2408 never went through the Assembly Appropriations Committee).
But after Cunningham amended the bill to make prosecutors solely responsible for suing social media companies — the original bill allowed parents to sue — Senate analyses said it would cost the state some money.
The Senate Appropriations Committee analysis said the bill would require the state Department of Justice to add five new positions and would also add to the Judicial Branch’s workload.
“I don’t know where they got that information from,” Cunningham said. “Is that just a speculation? To my knowledge, the Attorney General never said they needed more positions. In fact, we were working with the Attorney General’s office right up into Appropriations (last) week on amending the bill to address some some relatively minor issues they had with it. So yeah, I guess I’m skeptical of that.”
Cunningham said he’s “never liked the suspense process” and thinks it pulls in bills that “don’t have anything more than a negligible fiscal impact.”
He said it sometimes comes down to whether one person — the Appropriations Committee chair — likes a lawmaker’s bill. Cunningham said the Legislature is “supposed to be a legislative, deliberative body” with a set process for making policy that involves making a case to fellow lawmakers and the governor.
The way the Senate Appropriations Committee works is “anti-democratic,” he said.
“I never assume an outcome of anything,” Cunningham said. “But with respect to 2408, this is a bill that never got one ‘no’ vote all the way through the process up until now. And I would have liked my shot at convincing the majority of the Senate to vote for it.”
Political Maneuvering
Senate Appropriations Committee Chair Anthony Portantino, D- Burbank, set a defensive tone as he opened last Thursday’s meeting, pushing back against “Twitter traffic” from people raising why bills weren’t going to have a hearing.
“Every single item has had a public hearing opportunity and every author has had an opportunity to advocate for their bill,” he said. That’s why, he added, senators were only going to vote, and not hear public comments.
There were 491 bills on the committee agenda.
But before Senators cast a single vote, Patricia Bates, R- Laguna Niguel, the vice chair, raised a concern about political maneuvering. Why had Sen. Mike McGuire, D- Healdsburg, the majority leader, temporarily filled in for Sen. Sydney Kamlager, D- Los Angeles, on the committee that day?
Portantino said it was simply due to a scheduling conflict.
“It had nothing to do with any policy or any maneuver,” he said.
An aide to Kamlager did not respond to a request for comment.
For all but the senators on the dais and a handful of staff, the roughly two-hour-and-forty minute meeting was all but impossible to follow.
Portantino paused at times to check his phone. He stepped over to other Democratic Senators and whispered in their ears. And multiple times he called McGuire to leave the hearing room through a backdoor so they could talk privately.
The meeting also included a complicated process where voting results from one bill were sometimes used for others. The bills the committee killed were not discussed, leaving the reasons behind the decision unknown.
What Should Be Done?
Stein, of California Common Cause, was reluctant to prescribe a specific solution. But he offered up that “the general idea would be to create more transparency and make more votes on the record.”
Balber was willing to get more specific.
“No. 1, the suspense file should be reserved for bills that do in fact have a fiscal impact,” she said.
Too often, Balber said, bills are referred to the file that don’t actually meet the fiscal impact requirement but which lawmakers nevertheless want to see buried.
“The decisions need to be made in public,” Balber said. “Bills that die in suspense, no one ever knows why.”
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