If Senators or Assembly members can vote remotely, does California need a full time Legislature?

While most of the California public and news media was focused on the coronavirus earlier this week, the California State Senate worked into the evening Monday and passed Senate Resolution 86 allowing the Senate President Pro Tem Toni Atkins to assign, remove, and replace any member of a standing Senate committee during an emergency. SR 86 also allows Senate President Pro Tem Toni Atkins to authorize one or more members of the committee participate remotely by telephone, teleconference, or other electronic means.

This means Senators do not have to be in the Capitol or on the Senate floor to vote on legislation.

Atkins said this resolution provides her with “the flexibility to function during the time of crisis,” and “allows the Senate to be more nimble and responsive during emergencies.”  Atkins also said allowing Senators to participate remotely “authorizes the public to participate remotely,” but would be used “rarely if ever.”

Immediately Senate Majority Leader Sen. Bob Hertzberg asked for a voice vote rather than an accounting and tally of each of the 40 members of the Senate. SR 86 passed.

What’s the big deal?

SR 86 was introduced March 16, 2020, and adopted through a voice vote of the members of the Senate March 16, 2020. There was no vote tally taken to show who supported SR 86, or who opposed it. The resolution was not in print for the required 72-hours for members and the public to review it prior to the vote, and there were no committee hearings on SR 86.

The current rule for voting in the California Legislature is Assembly members and Senators must be on the green carpet in the Assembly chambers, or the red carpet in the Senate to cast a legal vote, and within sight of the Assembly or Senate secretary. And committee votes must be made in person.

California Globe remembers in 2010 when then-Senator Patricia Wiggins (D-Santa Rosa), who was suffering from a then-undisclosed illness, was propped up in the press bay, and told how to vote by her husband, who was also her campaign manager, on a critical Senate vote. Some months later, after her hometown newspapers called for her to resign  it was revealed that Sen. Wiggins had an invasive disease of the brain which caused significant memory loss, and outbursts.

“Senator Wiggins, D-Santa Rosa, has been witnessed making public outbursts since as far back as 2007, at events in her district and more recently, in Senate hearings,” I reported in 2010. “Both The Napa Valley Register and the Santa Rosa Press Democrat, called for Wiggins to resign.”

According to Capitol staffers, this apparent power grab by the Pro Tem allowing remote voting is clearly illegal according to Legislative Counsel.

“According to an Oct. 8 letter signed by deputy legislative counsel Michael Kerins, ‘a Member of the Legislature serving on a committee may not lawfully cast his or her vote by telephone, rather than by being physically present at a hearing,'” Capitol Weekly reported in 2009. Staffers in the Capitol say the rule still stands, and want to know how the Senate President pro Tem can get around this legal ruling by passing a resolution.

Ten Senate Republicans went along with the decision as there were no objections during the voice vote. California Globe is also told that the Senate Republican Caucus did no staff analysis of Senate Resolution 86, which surely would have exposed the illegality of the resolution.

Many on the Democratic Caucus staff are just as concerned because of the mischief that could come with remote voting and committee replacements.

This resolution and vote opens a Pandoras Box: If Senators or Assembly members can vote remotely, does California need a full time Legislature?

And if Assembly and/or Senate members don’t want to have to show up to cast votes in the California Legislature, can they still receive per diem for a remote vote? According to Capitol staffers, that is the devious part – it’s all about legislators receiving per diem for casting a remote vote while sipping a Mai Tai poolside in Kauai.

California lawmakers are already the highest paid of any Legislature in the country at $114,877 per year, and receive $201 per diem per day for each day in session they are present, adding up to a significant bump in total compensation.

Notably, the Assembly did not adopt such a measure.

See the video at the 32:50 mark for Senate President Pro Tem Toni Atkins’ introduction of SR 86 and the voice vote.

Read Senate Resolution 86 below.