by Laird Harrison and Jon Brooks
Of all the stuff we've covered here at News Fix these past couple of years, only two stories have really prompted an actual state of incredulity among the people to whom we relate the crux of the matter for the first time.
The first involved the Berkeley Police Department sending 10 officers to search for the Police Chief's stolen iPhone. The second are the findings from the long Associated Press report by Hannah Dreier and Juliet Williams we posted last week. Their investigation discovered that California Assembly members add or even change their votes on legislation after it's already passed or failed on the floor -- about 5,000 times this session, in fact.
From the AP investigation:
The analysis, based on the AP's own tracking of every Assembly vote cast in 2012, revealed a number of patterns, including:
— Lawmakers running for a new seat in November were the most likely to switch their votes. Of the top 15 vote changers, 11 are seeking a new office outside of the Assembly. Of the 15 lawmakers who switched votes least often, 11 plan to stay put, although every member of the Assembly must run for their seats again this year.
— Lawmakers regularly changed their votes on bills dealing with powerful lobbies or hot-button social issues. Among the bills that generated the most action after-the-fact were AB1963, which would have required the state to look into extending the sales tax to services, and AB1166, which would have prevented schools from including students' test scores on their ID cards and was supported by teachers unions.
—Republicans, the minority party in both houses of the Legislature, switched their votes at more than twice the rate as Democrats. GOP lawmakers accounted for about 65 percent of the 220 vote switches, although they make up just 35 percent of the Assembly.
As AP reports, it's perfectly legal for lawmakers to avail themselves of this procedure as often as they want, although they can't switch their vote if it would affect whether a bill passes or fails.
There's no way for the general public to gain access to this information without undertaking the kind of investigative work Dreier and Williams did. Dreier told us the entire effort took nine months.
"Vote changes are technically public," she said. "They're made either at a computer or spoken aloud on the floor, [and] then they're logged onto a daily file. So to figure out how often your lawmaker is changing, you'd have to go through every daily file for the entire session."
Which is what the two reporters did, entering each vote change by hand. "It was incredibly time-consuming," she said. "I think that's probably a big part of why nobody's tried to go through these changes in a comprehensive way before."
When you look at the database released by AP in conjunction with the story, some Bay Area lawmakers -- Jared Huffman, Nancy Skinner, Tom Ammiano and Mary Hayashi -- stick out for one reason or another.
For instance, the North Bay's Huffman, now running for a seat in the House of Representatives, "changed his vote 144 times, more than twice the average rate," according to Dreier and Williams. All of Huffman's changes were "adds," meaning he went from officially "not voting" to either a "yes" or "no" -- after the vote was over.
So we asked Assemblymember Huffman, you know… what's up with that?
Huffman said he feels the AP article conflates "changes" with "adds."
"There's a big difference between a vote that is added on late after the roll is closed...because a legislator might be literally coming back from the bathroom or might have been in a meeting off the floor, and a vote that's actually changed after it's cast one way or another," he told us. "In fact, [I had] zero vote changes this year; I almost never change my vote – the only time I've done it has been probably less than five times in six years where a mistake was made."
But why all the missed votes, creating a need to "add on" later?
"Many of them [were] because I was busy doing legislative work, in some cases having multiple hearings going on in different committees while the floor session was pending, and I had to complete my hearings, run down to the floor and add on my votes. There's nothing unusual about that."
Huffman said holding simultaneous committee meetings and floor votes is a big problem and should be changed. "Assembly scheduling is a mess," he said. "Often, especially during deadline times, all of [these committee meetings] can be happening concurrent with the floor session. Members are running around in an incredible fire drill and then rushing down to the floor to quickly cast their votes before session is gaveled down."
Our old pal and colleague John Myers, now the political editor at KXTV News 10 Sacramento and a longtime reporter assigned to the Legislature, told us he did think there were "too many bills with too little time for legislators to process them and weigh in," and that resulted in clerical or procedural errors that necessitate changed votes later.
Hannah Dreier said scheduling conflicts contribute to the slew of Assembly "adds" in general. But she noted that there are lawmakers who manage to "juggle their responsibilities off the floor with the votes that they have to take as legislators. For example, the Assembly Speaker John Pérez missed only six votes and he arguably has more responsibilities than any other lawmaker in the Assembly. Bill Monning is another example; he chairs the Health committee, which is a very important committee in the Legislature, and he missed only seven votes, then added on."
Yes to No and No to Yes
Assemblymember Huffman makes a clear distinction between adding on to a vote and actually changing it. He thinks the rule allowing changes should be reconsidered.
"Where I think there begins something we should be concerned about is when this becomes a pattern," he said. "Where votes are withheld or routinely changed. And there are colleagues who do that. There are some political advantages, some people think, to leveraging their vote that way."
Hannah Dreier said there is definitely a political element to some vote-switching. "It seems like a lot of lawmakers use the process to avoid taking political risks. To avoid voting yes on legislation that fails or voting yes on legislation that doesn’t have true bipartisan support, or to take their votes off of legislation that is controversial and doesn't need their vote to pass.
"We talked to experts who say that lawmakers use this practice to appease lobbyists who are there looking at the bill, while also pleasing their constituents who will be only looking at the final votes. One professor told me that lawmakers will tell lobbyists that they won't be the deciding vote on a bill. But if a bill passes they will then add their vote on."
Dreier said that while lawmakers would not admit to her that they changed votes for political reasons, some acknowledged they will switch after hearing from constituents. From the original AP report:
Beth Gaines (R-Rocklin)...blamed the pervasiveness of mobile technology for her vote switches.
"Now we have cellphones, we're able to communicate with our district and with our staff as the bills are being navigated through," she said. "I can get text messages from my staff saying someone called in."
The Rocklin Republican switched votes nine times last year, usually to reflect a more conservative stance... Sometimes you do flip-flop, but it's because people from your district are calling and saying, 'Wait a minute, that could really hurt my businesses,'" she said.
Excluding "adds," East Bay Assemblymember Nancy Skinner switched her votes seven times in the period analyzed by the Associated Press, at the high end of the scale. What's interesting about her changes is that they all went from either a yes or no to "not voting."
KQED's Caitlin Esch asked Skinner both why legislators would go on record as "not voting" and why they would switch their vote to that final status after initially voting yes or no.
"Everyone has different reasons" for not voting, she said. "In a way, I think for some of us, not voting is our ability to say either we don't think this policy was cooked right, either positively or negatively... It's the old 'none of the above.'"
Skinner noted there is no provision in the Assembly to "abstain" on a vote, and "not voting" is the equivalent.
As to why someone would initially record a yes or no then switch to not voting after the fact, Skinner said it was often a matter of courtesy to bill authors who have the votes necessary to pass a particular piece of legislation that is held up for procedural reasons due to the lack of a quorum.
"You're saying to the author, 'I know there's not enough people on the floor yet, [but] you've showed me you have the commitment to pass, so I'm giving you this courtesy. But I'm going to have the right to take myself off because I don’t think the bill's cooked yet."
John Myers again, this time on the notion of "courtesy" as a rationale for legislators shifting votes. Without addressing any particular lawmakers' changes, he said:
Should a lawmaker be able to weigh in on an issue, even if they had a scheduling conflict? Perhaps. Should a lawmaker be able to change their vote if he or she got confused and pushed the wrong button? Perhaps. But the line between courtesy and controversy seems to be getting pushed further and further. There are undoubtedly assemblymembers using courtesy as a way to avoid taking a potentially unpopular stand.
[Vote switching] also not the only questionable use of legislative courtesy practices. There is also the practice of members who vote in place of someone not sitting at his or her desk – officially frowned on, but something that does happen. Or there are assemblymembers who sit at their seats and refuse to vote, in political parlance, ‘taking a walk’ or ‘laying off’ a bill rather than doing what they were sent to Sacramento to do."
Two more from the Bay Area
San Francisco Assemblymember Tom Ammiano changed his vote from a yes to a no or vice versa nine times, the fourth highest total in the Assembly in that particular category, according to AP's data.
Assemblymember Ammiano did not want to talk to us about the issue; spokesperson Carlos Alcala from his office said "his vote adds and changes are in line with the norm for the Legislature and there's a variety of legitimate reasons that that happens. His constituents know where he stands and his vote changes are not about trying to [hide] anything."
And Assemblymember Mary Hayashi (D-Hayward), AP noted in its report, "altered her vote more than any other member of the Assembly. She failed to vote on legislation 291 times and then changed the record afterward to reflect a "yes" vote nearly every time."
Assemblymember Hayashi's office didn't return our call, but AP talked to her chief consultant, Ross Warren, who would only say, "She's always recorded a vote. She's never missed a day of work."
So is this a big deal or not? We'll give the last word to John Myers, who says that what is basically a legislative amenity is no longer really practical in this day and age, when any potential "gotcha" is probably going to come to fruition:
This is one of those “it’s no big deal until it’s a big deal” practices in the Assembly.... These practices get a lot more scrutiny in this digital era, where everything lawmakers do can be seen or heard pretty instantly. But legislative protocol is still very "old school," and the existence of these practices seem to largely reflect a genteel time that’s long since gone.
Government watchdog groups like Common Cause, you won't be surpised to learn, are calling for the practice of vote-changing to be reformed.