The Plight of AB 1638 – A Reminder of Legislative Process Rules

For those following Assembly Bill 1638

, which proposed to temporarily suspend the motor vehicle fuel tax, the bill serves as a reminder of some important legislative process rules. AB 1638 was introduced on January 12, 2022. The bill proposed to suspend the imposition of the tax on motor vehicle fuels for 6 months and contained an urgency clause so that the bill, if enacted, would take effect immediately as an urgency statute.

In reviewing the bill’s history, several important legislative process reminders can be found. The following is the official bill history of AB 1638:

Bill History

Upon introduction in January, the bill sat in the Assembly Rules Committee until it was referred at that committee’s weekly meeting on Thursday, March 24. The bill received a single policy committee referral – to the Committee on Transportation. Prior to that, there were numerous efforts on the Assembly Floor to withdraw AB 1638 from the Rules Committee and place the measure on the Floor, but those efforts were unsuccessful.

First reminder – Pursuant to Assembly Rule 14(a)(1), the Committee on Rules has the power to refer each bill to committee. It does not have to refer a bill, and the committee can make a referral when it chooses.

Thereafter, the Assembly suspended Joint Rule 62(a), which requires a 4-day Daily File notice before a bill can be heard.

Second reminder – Joint Rule 62(a) may be suspended with respect to a particular bill by approval of the Committee on Rules and a two-thirds vote of the Members of the house. The purpose of this rule waiver was to have the bill heard that afternoon in the Transportation Committee, which did occur.

There was plenty of controversy at the hearing because both parties feuded over the substance of the bill and whether amendments should or should not be made to the bill. The bill’s author wanted to have the bill passed out of the policy committee in its introduced form. However, a member of the Transportation Committee proposed to “gut” (i.e., remove the current contents of the bill) the bill and insert entirely new provisions, which would have imposed an oil severance tax.

Third reminder – Amendments to a bill can be made by a majority of those present and voting, rather than a majority vote of the full committee. This rule also applies on the Floor. A majority of the Assembly or Senate is not needed for a Floor amendment – only a majority of those present and voting. And amendments can be made with or without the bill author’s approval.

A majority of members of the Transportation Committee proposed amendments over the objections of the bill’s author, which can be done. This is referred to as “hijacking” a bill, which is defined by the Office of Legislative Counsel as “adoption of amendments that delete the contents of a bill and insert provisions on a different subject (see Germaneness). May occur with or without the author’s permission.”

Fourth reminder – Amendments are actually recommended by a policy or fiscal committee. Those proposed amendments are “recommended” to the entire house for adoption. Granted, in almost every instance, those amendments are adopted by the entire house by unanimous consent (i.e., not single legislator objects). If there is an objection, the amendments would be adopted by a majority vote on the Floor.

Thereafter, the policy committee passed the bill with the recommendation to amend it and re-refer it to the Committee on Appropriations. After passing out of the policy committee, and before being referred to the fiscal committee (i.e., the Appropriations Committee), a bill is first placed on Second Reading.

Fifth reminder – The second reading of the bill takes place after the bill has been reported out of committee, either the policy or fiscal committee, to the Floor of either the Assembly or Senate. This process occurs whether the bill has been amended or not. Also, a bill can be on Second Reading several times, such as when the bill has been reported out of the policy committee and then again after being reported out of the fiscal committee. There is a Second Reading portion in both the Assembly and Senate Daily Files.

Sixth reminder – A bill, once introduced, is in possession of the house. That means the house (i.e., the Assembly or Senate) can do with a bill as it chooses. Granted, the usual custom and practice of both houses is to act in accordance with the wishes of the bill’s author. But, for example, a committee can set a bill for a hearing over the objection of the bill’s author. Or the committee can refuse to set a bill, despite the pleas of the author to have it heard.

The general rule is that a bill remains on the Second Reading File for one day before moving to the Third Reading File. On Thursday, April 7, AB 1638 was File # 1 – the first bill on the Daily File and the first bill on the Second Reading File. The prior two days, the Assembly had only a “check-in session” and any legislator can technically object to the adoption of the committee amendments to AB 1638. That is what occurred in this case.

While on Second Reading this week, because there was objection to unanimous consent to adopt the amendments made by the committee, the amendments to the bill as proposed by the Transportation Committee were not made. With such an objection, it would have taken a majority vote to adopt the amendments on the Floor on Thursday during the Floor Session.

However, instead AB 1638 was “stricken from the (Daily) File.” This is permitted by Assembly Rule 98. The motion to strike AB 1638 was adopted by more than 41 votes (i.e., more than the majority vote required). Under AR 98, once stricken, the bill may not be acted upon again during the session.

As a result of Thursday’s Floor action, AB 1638 is dead for the year, unless that action is rescinded and the bill is returned to Second Reading. Moreover, because the bill was struck from the Daily File before the committee amendments were adopted, the amendments were never made to the bill, and so the introduced version (with the gas tax suspension) remains in print.

So, while the bill was not amended in the end, the bill is unlikely to be revived this year either.