Sweeping ballot proposal would force California lawmakers to reveal lobbyist ties

SACRAMENTO, Calif. — A ballot initiative likely to come before California voters next year would overhaul the state’s open records law, forcing unprecedented scrutiny into lobbying activities at the Capitol and ensuring sexual harassment allegations against lawmakers are public.

The initiative, authored by a bare-knuckled and litigious consumer group, would amount to a vast rewrite of a law signed by then-Gov. Ronald Reagan in 1968 and for the first time make many private papers of lawmakers publicly accessible, according to a text of the proposal obtained by POLITICO.

The proposal, which is expected to be filed Wednesday, would affect nearly every aspect of California’s sprawling government and create a new minimum standard for how long records must be retained and archived.

Bob Stern, who co-authored the state’s Watergate-era political reform law in 1974, reviewed the proposed measure in detail and pointed to support from the public in further scrutinizing lawmakers' interactions with lobbyists as well as more information into legislative probes.

“The public is always in favor of more disclosure and more transparency,” Stern said in an interview. “So that's what these proponents have going for them is that this is for more transparency, more disclosure. And who could be against that?”

A longtime watchdog of government ethics, Stern cautioned that it could get onerous for lawmakers to have to check with everyone they are meeting with about whether — or for whom — a person might be lobbying. But he said he didn’t find any “fatal flaws” in the proposal when shown an early draft.

The amount of disclosure would be a painful pill for elected and government officials to swallow. But it also could give leading Democrats a potent point of contrast with rival states such as Florida, which has historically had a strong public records law but under Republican Gov. Ron DeSantis has sought to invoke “executive privilege” to conceal records amid backlash from media and public interest groups.

The new proposal in California would dramatically broaden the definition of public records to include documents maintained by private vendors and contractors relating to their work on behalf of the state — a risky bet on the part of the initiative’s proponents because it could incentivize businesses or other third-party groups to spend money against the measure.

The proposal comes from the group Consumer Watchdog, an outfit that itself grew out of a ballot measure — a 1988 initiative designed to curb insurance company abuses. The group consulted a working group of legal and government ethics experts, including attorney Kelly Aviles of Californians Aware, and said it has budgeted $5 million to ensure the proposed overhaul qualifies for the statewide ballot next fall. Internal polling conducted by Paul Maslin and Rick Sklarz found that it starts off with strong majority support from voters across party and ideology.

Jerry Flanagan, the litigation director at Consumer Watchdog who helped write the initiative, suggested it would be foolhardy for opponents to take the side of less transparency. “This appears to be one of those rare initiatives that all you have to do to win it is qualify it,” he said.

There will no doubt be disagreement over whether such a measure is needed, however. Officials across government have long cited high costs and lack of staffing as reasons for long delays in obtaining and disseminating public records. As part of the initiative process, the new proposal would get an estimated price tag.

But numerous organizations have long complained that the state’s open records law is also riddled with loopholes to the point of being obsolete. They have taken particular aim at a separate set of rules that govern legislative disclosure — arguing that lawmakers purposely created one system for the rest of the state to abide by and weaker rules for themselves to skirt scrutiny.

Under the new proposal, called the Government Transparency Act, legislators would have to disclose lobbying meetings, fundraising events and public events on their websites, while the Legislature would be required to release records relating to misconduct probes. Their records would need to be retained for a minimum of five years — an effort to prevent their rolling deletion — and then be subject to state archiving laws.

State agencies would be subject to similar retention timelines, as would cities and counties, which generally have a two-year retention minimum, though records such as emails are sometimes purged sooner.

A host of other provisions would become law that proponents say are needed to ensure the state conducts thorough and timely searches for records and discloses in detail why they can’t comply, if that’s their determination.

The measure also wades into particularly thorny questions around disclosure of sexual harassment and workplace misconduct disclosures. After news outlets threatened legal action for records following a string of Capitol MeToo scandals, the Legislature in 2018 said it would voluntarily release some documents — substantiated claims against lawmakers or high-level staff.

This initiative would enshrine that disclosure into law and go further, requiring all investigations — not just those determined to be well-founded — to be accessible to the public, so long as they are not deemed frivolous.

The 29-page proposal also would:

• Set a 30-day clock for agencies to provide requested records, unless prevented to do so by extraordinary circumstances. They would also have to post contracts with vendors on their respective websites.

• Confirm those suing public agencies have the same access to discovery as they would with any civil lawsuit.

• Limit companies from preemptively filing lawsuits denying records and curb public agencies’ use of “attorney-client” privilege and the so-called attorney work product doctrine.

• Require the publishing of annual reports about delays in access to public records.

• Change the existing law by providing that only interagency communications are potentially protected. That would mean, for example, that communication solely within the governor’s office would potentially be protected. However, communication with individuals outside of government would not be.

Proponents contend the public has a right to know who is influencing public policy decisions. They added that only communication from before a decision is made on government policy would qualify under the deliberative process privilege.
Changes to transparency rules could dramatically reshape the lawmaking process in California, which could explain why efforts to expand transparency through the Legislature have repeatedly fallen flat. In 2019, Gov. Gavin Newsom vetoed a bill that would have required state agencies to retain email for two years. The measure, he wrote, did not strike the “appropriate balance” between transparency and the costs associated with more records retention.

A similar bill last year which did not receive a single ‘no’ vote as it moved through the Legislature was killed in the Senate Appropriations committee.

“Lawmakers voted unanimously for the bill because they know, like every one of their constituents knows, how inexpensive it is to back up their data and emails online,” said former Assemblymember Marc Levine (D-Greenbrae), who wrote the measure. “How do you build trust back up in government? It’s with sunlight,” Levine added.

One recent precedent was a 2016 ballot initiative that took aim at backroom deals that cropped up in the waning hours of the legislative session. That measure, Proposition 54, required that all bills be posted online for at least 72 hours before getting a final vote. It was championed by Charles Munger Jr., a one-time GOP megadonor who poured more than $10 million into the ‘yes’ campaign. Then-Lt. Gov. Newsom was one of few Democrats to endorse the proposal, putting him at direct odds with allies such as the California Democratic Party and the California Labor Federation.

The meager opposition effort — which raised less than $28,000 and argued for the status quo — was trounced at the polls. Californians approved the initiative by a 30-point margin, effectively snuffing out last-minute dealmaking at the Capitol and forcing the governor, lawmakers and outside special interests to in turn adapt their own strategies.

This time, however, supporters may have to contend with a more vigorous opposition campaign. By extending the transparency rules to entities doing business with the state (specifically, by requiring the state to collect and keep those records), backers run the risk of baiting pushback from deep-pocketed corporations.

That would be familiar territory for Consumer Watchdog, which has picked fights with moneyed opponents before. The group notched its signature win 35 years ago with a ballot measure that rolled back auto and property insurance rates and expanded state regulation of insurers. It fended off a then-record $60 million opposition campaign from the insurance industry.

Other uphill battles, such as a 2014 effort to enable state regulation of medical plan rates, ended in defeat in the face of heavy corporate spending.

Consumer Watchdog has also taken flak from critics for using its nonprofit status to legally shield its donors' identities, even as it pushes for more corporate and government transparency. Officials with the group note that they have disclosed some major funders and other sources of revenue. But they broadly argue that the government itself needs to step up.

“The laws that apply to California public records — that apply to agencies and the Legislature — are being abused,” Flanagan said. “Work on behalf of the people by government agencies demands a heightened transparency standard. And we are the best group to call it out because we litigate these issues and worked with a group of leading government transparency advocates to draft the text.”