By Chris Micheli
There are several different types of bill analyses used in the California Legislature. First, there are committee and floor analyses of bills. Second, at the committee level, there are analyses prepared by the policy and fiscal committees. These different types of analyses serve different purposes for different audiences.
In most instances, the substantive analyses are prepared by the policy committees in the Assembly and Senate. Nonetheless, even these can differ significantly between short versions (typically 3-4 pages in length) and long versions (sometimes reaching 20-25 pages). The fiscal committee analyses, focused obviously on the fiscal impacts of bills, are typically 1-3 pages in length.
Each of these analyses are necessary to address critical aspects of the bills that are being analyzed by the policy and fiscal committees. And, they are designed for their audiences – legislators and others who are concerned with either the policy or fiscal implications of a bill.
Readers should be aware that the Democratic and Republican Caucuses in both the Senate and Assembly also prepare their own, confidential analyses for their respective party members. These usually contain summaries of the key provisions of a bill, comments that may be in line with party ideology, and listings of proponents and opponents of the bill.
Between committee and floor analyses, most bill analyses produced for the floor of the Assembly or Senate usually are shortened versions of a combined policy and fiscal analysis. They address in summary fashion the key policy and fiscal aspects of the bill. There are a few differences between how the Assembly and Senate prepare their floor analyses. The most often cited difference is that the Senate one includes a list of supporters and opponents of the bill, but the Assembly version does not.
One important point that has been raised by academics is that legislative bill analyses rarely consider alternatives to the legislation that is being analyzed. In other words, legislative staff review the policy proposed by the bill, without consideration for whether there are alternatives to be considered and whether the particular bill is the best approach to address the identified public policy issue.
This is not a criticism of legislative staff; rather, it is an acknowledgment that it is too time consuming to do that type of policy analysis when hundreds of bills need to be analyzed in a timely manner. Perhaps if there were lower bill introduction limits, or more time for bills to be considered with less stringent deadlines, then more policy analysis could be done by staff.
In most instances, policy committee analyses address the following questions: What is the intent behind the legislation? What will the legislation do? Does it create new rights or benefits? Does it prohibit, regulate or impose obligations? Does it authorize or permit conduct?
Does it apply prospectively or retroactively? What are the arguments for and against the bill? Who supports and opposes the measure?
In preparing a legislative bill analysis, what do you need to do to analyze a piece of legislation? First, read the bill and identify the key information contained in the bill. For California bills, the first page or two of a bill contains the following information: Bill number, the bill’s author, the date of introduction, the date of each amendment, the added or amended code sections, the vote requirement, the bill’s fiscal implications, and whether there is any State-mandated local cost.
The introduction or amendment date should be noted in your analysis because each time a bill is amended, the language changes and reference are always made to the date of the amended version when describing the bill’s version and referring to its provisions because bill analyses must be completed based on the most recent version of the bill.
Thereafter, reading the Legislative Counsel’s Digest provides a brief summary of the changes a proposed bill will make to current law, if adopted. However, do not rely on this summary as your primary source of information because it may not include information on all of the bill’s provisions. Instead, you must read the actual bill language because only the bill language will become law.
In addition, it is important to identify legislative intent in your bill analysis. It can help guide those who must comply with the new law or the law changes made by the bill, as well as for courts to make such determinations in future litigation. Legislative intent can guide interpretation and implementation of a particular statute, especially when a bill is lengthy, complicated or, in some cases, ambiguous.
It will be beneficial to identify any language in a bill that elaborates on the purpose or goals of proposed legislation to help you prepare your bill analysis. Legislative intent can sometimes be found at the beginning of the bill in such phrases as “it is the intent of the Legislature to do the following in this act” or “the Legislature finds and declares.” However, there may not always be such explicit statements of intent in the bill. As a result, at times you will have to interpret language that implies intent.
You will also want to consult the author’s statement in support of his or her bill, other analyses of the measure (e.g., those prepared by a state agency or department or a committee in the other house), press releases, written testimony, or other sources that you obtain. Review in detail the letters of support and opposition, any reports or studies, and other relevant materials regarding the bill being analyzed so that they can be identified in your analysis.
When reviewing the bill’s provisions, note any statements imposing requirements, prohibiting or permitting conduct, and other relevant provisions. Your bill analysis should discuss these statements, and determine to whom its provisions apply. Answer questions such as: What action is required? What action is prohibited or permitted? Who is impacted by the bill?
Your analysis should clearly discuss existing law that is being amended or repealed, and what impact the bill would have on existing law if it were enacted. The analysis should identify substantive changes to the law, noting in particular words such as “may” or “shall.” The more detailed your analysis of the bill, the more helpful it will be for those who must comply with the bill’s provisions or interpret them.
In analyzing a bill, it is also valuable to understand the circumstances surrounding the need for the bill, such as what led to its introduction, whose interests are being represented, and the goals of the legislation. The purpose of understanding the context of the bill will enable you to address the critical question of what problem the Legislation is attempting to address in this particular bill.
After setting forth the specific provisions of the proposed legislation, it is important to discuss for those reading the analysis any additional information that explains the background of the measure. For example, are there any applicable court decisions? Have there been previous efforts to pass similar legislation? If so, what happened to those bills? Was the language the same, similar or different in those prior bills?
In addition, you should provide a list of the supporters and opponents of the bill, as well as a summary of the proponents’ and opponents’ arguments. It is important for legislators to know the arguments pro and con on the particular bill and which groups are in favor and against a bill.
Finally, for those bill analyses that are prepared by California agencies and departments, they usually follow this format: Summary; Reason for the Bill; Analysis – Existing Law; Analysis – This Bill; Legislative History; Program Background; Other State’s Information; Fiscal Impact; Support; Opposition; and, Arguments – Pro and Con.
Writing legislative bill analyses is a critical component of the legislative process because these analyses explain the substance of what is contained in legislation so that legislators and members of the public can be aware of proposed law changes. While there are different types of bill analyses, they all serve the same function – to inform.
Chris Micheli is a Principal with the Sacramento governmental relations firm of Aprea & Micheli, Inc. He also serves as an Adjunct Professor at McGeorge School of Law in its Capital Lawyering Program.