Chapter Six
Committee Hearings and Sherwood Forest
The legislative committee hearing is a political
institution in and of itself, and the hearing on our quixotic
tax bill, though a onetime event, was typical of many hearings
on major controversial legislative proposals.
Compared to the Senate or Assembly as a whole, committee
meetings take much more legislative time and energy and are
far more productive of deliberate decisions. At good meetings
legislators actually rewrite bills in open hearings, debating
precise meaning and even punctuation--they work hard to
develop language satisfactory to reluctant members but still
strong enough to get the job done. There are also times when
grandstanding for the press becomes more important than
substance. Often you can bet that if a leading conservative or
liberal makes a point, his or her paired opposite will feel
impelled to respond. Once Alan Sieroty had former U.S.
Attorney General Ramsey Clark testify in favor of a bill to
prohibit capital punishment. The bill still went down the
tubes but Clark's testimony got a lot of publicity and may
have softened public support of the death penalty a little--
damn little probably. Though Clark was speaking directly to
committee members, a large part of his appeal went over their
heads and through the press to the public.
Each legislator usually serves on only three or four out
of a possible 25 or 30 standing committees. Good committee
members become semi-expert on the subject matter of their
bills. It's their job. On the floor of either house, actual
changes or amendments to bills' language seldom occur (the
decision is usually "yes" or "no") but such changes often, if
not always, occur in committee.
On the Assembly or Senate floor only legislators may
speak, but in committee any person may speak as a witness.
Witnesses can be lobbyists or just plain citizens speaking to
the public interest as they see it--a Hell's Angel might
appear before the Transportation Committee speaking against a
compulsory motorcycle helmet bill; a Libertarian might appear
before the Public Health Committee to testify against a bill
requiring flouridation of drinking water.
Witnesses can be key to the success or failure of a bill.
So-called 'expert witnesses' may be called by the author to
support his bill or by the opposition to oppose--and may, on
occasion, upset the applecart and affect the result in a way
they hadn't intended. For example, when I was Chairman of the
Senate Education Committee I authored an important bill for
university students. It was intended to control and limit the
power of organizations such as the Educational Testing
Service, a legally non-profit corporation in the business of
devising, administering, and evaluating tests of student
ability, interest, and adaptability. We felt there was an
overreliance by state and private colleges and universities on
these tests and that too much student time and money was spent
on them.* Students claimed Administration made them take these
tests every time they turned around, and made them pay for
them. People whose judgement I trusted advised me that the ETS
was overused, did overcharge, and its tests were
insufficiently correlated for accuracy. I told the students I
thought our bill was too good for the committee and that I
didn't think we'd make it. We presented our bill and did OK,
but I sensed in committee members an attitude of "is this bill
really necessary, Senator Dunlap?"
Then came the opposition. ETS had 6 or 8 witnesses from
various universities, including undergraduate department heads
and graduate school deans. They were there to beat the bill,
but they ended up winning it for me.
They marched up to the witness table and took their
seats, exuding academic arrogance. Though they didn't say it
in so many words they implied that the committee was out of
place even giving a hearing to such a bill and taking their
valuable time to come and oppose. When members questioned them
________________
*The tests encouraged reliance on a numerical evaluation to
determine student quality. This system is an example of what's
been called "The Myth of Measurability"--the myth being that
you can reduce so-called 'imponderables' to an objective
numbers system. Reducing quality to a numerical evaluation, I
think, can be a way of avoiding hard decisions which should in
fact be made rather than avoided. Use of numbers assumes an
equality or uniform identity for each unit, and is a denial of
diversity and individualism. (See "The Myth of Measurability"
by Paul Louis Houts, Hart Publishing Co. Inc 1977.)
their questions went unanswered and witnesses used the questions as
as excuses to report what they'd come prepared to say. They
were unable to respond to a 'live script' and turned the members
off so much they bought a bill they wouldn't have otherwise
supported.
A good witness ought to have some idea of what
legislators are looking for, thinking about--and should
clearly describe what the bill does, but at any point in
testimony be prepared to shift ground and respond courteously
to anything any legislator brings up (the 'live script'
concept), not say, "No, Senator, that hasn't got anything to
do with it; you're way out in left field there Senator So-and-
So..." Acting as if his judgement were above reproach, ETS's
"expert witness" , when questioned, implied that the Senator
was out of his element and didn't understand the subject or he
wouldn't ask such a question.
At this point in testimony I could almost see the vibes
from the other committee members. They were shaped a little
like arrows and pointed in the direction of all the witnesses
but at this one especially. And Senator So-and-So at this
point looks at the academics and thinks, "maybe I'd better
vote for Dunlap's bill and let these guys know who's boss."
Some politicians are not college graduates, but not very
many are stupid. A witness entering a committee hearing enters
a lion's den. His tongue is his whip but it needs to be used
skilfully, and the lions tend to stick together. There are
some Senators on committee who ask questions the rest of us
think are stupid and a waste of time, but the witnesses
shouldn't call attention to this fact, because legislators are
a relatively select fraternity, and it's all right for one of
them to call one of their members stupid, but if an outsider
does it he's hurt himself and his cause.
A good witness can put a doubtful bill over the top. I
had an Assembly bill directing the State Department of Parks
and Recreation to establish biker-hiker campsites in state
parks for people traveling on foot or in non-motorized
vehicles. I believed that our parks were too heavily oriented
to serving car camping family vacationers, and the needs of
young single people traveling alone were not being considered.
The opposition, including the Department, said my bill would
turn our state parks into "hippie hideouts" and the Department
should be left alone to run its own shop. I testified myself,
giving statistical background, and had one outside witness.
She was a young woman student from Reed College in Oregon who
had been an intern with me the previous year. She was
articulate, erudite, and soft-spoken. She had just completed a
700 mile bicycle trip from college in Portland to her home in
Napa and was the picture of tan, radiant, enthusiastic and
wholesome young America. All she did was tell of how the
biker-hiker campsites would have been helpful to her, but her
presence implicitly put the lie to the "hippie hideout"
assertion and my bill got the necessary "do-pass"
recommendation from committee.
Before the committee reforms of the early 1970's some
Senate committees held secret meetings the night or noon
before actual hearings and took their votes in private, then
announced the results without the press or public even knowing
how individual legislators had voted. Now, a rollcall vote is
required on all bills, and the results are recorded and
published once a week. (Credit for this change should go to
Senator Peter Behr, Republican from Marin County, who, as a
begining Senator in 1976, almost single-handedly took on the
Senate establishment and won.) A discerning constituent can
read between the lines if there are too many failures to vote
by any one legislator. And that's how some bills are killed in
committee--legislators deliberately absent themselves rather
than have to go on record against a bill. It takes a majority
vote to get a bill out of committee--5 out of 9 on a 9-member
committee, say--so even 4 positive votes and no negative ones
isn't good enough.
It's pretty hard to duck a vote on the floor if the
heat's really on (there the Speaker may actually send the
Sergeant-at-Arms after you and bring you in) but committee
business doesn't have that priority, so they can get away with
it. They always have some excuse--like they had to be in their
district or in another committee or in the Governor's office--
but I've been pretty damn sure sometimes they were just plain
hiding out. I've lost good bills--good for the people of the
state--because legislators have ducked voting. They wouldn't
have had the guts to vote against the bills, but they've had
the craft to play hide and seek. This happens all too often--
it's unfair, but then, nobody ever promised me things'd be
fair in state politics. If things were guaranteed to always be
fair the system would run itself without senators and
assemblymen.
An old curmudgeon in the Senate who served for years as
chairman of Senate Finance and knew the rules upside down one
way or the other, once ruled against somebody in committee,
"you're out, Senator X, your bill is dead."
Senator X says, "but that's not fair," and Chairman
George Miller Junior reaches in his pocket and throws the book
of rules for Senate Committee hearings at him down and out
about 12 feet, missing the microphone that's between himself
and the complaining senator--the book hits the senator on the
arm and it's too small to hurt him but it's kind of an
offensive gesture and he shies off a little and looks up at
Senator Miller as if to say "what you gonna do to me," and
George Miller barks, "There's the rule book--it tells I gotta
give you a hearing and gotta let the public know about it--it
tells me I've gotta give you a chance to say your spiel--I've
dotted my i's and crossed my t's and done it all--you read in
the rule book, Senator, and tell me where it says I've gotta
be fair."
At the Assembly Rev and Tax committee hearing that
afternoon at the Capitol, the professor performed well. Our
lunch discussion had apparently not only reassured, but also
inspired him. Even committee members adverse to our bill
avoided taking him on. Maybe they were intimidated by his
title, but more likely they were saving themselves for Alan
and me. Mr. Prestige, A. Alan Post, longtime Legislative
Analyst, complimented Alan's and my presentation of the bill,
"Mr. Dunlap and Mr. Sieroty have done an excellent job of
placing alternatives before this committee. They are
nontraditional but they are alternatives which should be
considered on their merits." It was like the teacher telling
you you done good--or your mother or father--Post's comments
made me feel successful and important. (A. Alan Post worked
for the legislature giving non partisan analysis of bills and
budgets over a period of decades. He served during the terms
of Governors Knight, Pat Brown, Reagan, and Jerry Brown.)
Assemblyman Bill Cunningham from Orange County listened
to the professor because he didn't want to be discourteous to
an out-of-town guest, and he listened to Post because Post
wasn't really saying anything in advocacy of our bill, but as
soon as Sieroty and I began presentation of the facts and
figures supporting it, he gained the chair's permission to
interrupt.
Cunningham was one of a few arch conservatives. Coming
from a safe Republican district, he seldom bothered to carry
any bills of his own because he didn't need them for his
district and/or to get re-elected. He got his ego kicks out of
being an obstructionist to 'reform'. His view of the potential
of human nature was limited by his observation of its past--he
was intelligent, but not inspired, nor creative. What it
really amounts to is that there were a few conservatives who
didn't have any political reason to create through
legislation, so, in order to carry out their self-fulfilling
phrophecy --that the world is limited to what has already
occurred--they continually try to poke holes in innovative
programs.
Defeatist criticism is obviously intended to kill
progressive legislation, and sometimes it does, but now and
then it serves to improve the innovative product by exposing
errors which can be eliminated--making the final concept
better. This rationalization for the existence of the arch
conservative is valid to a degree--'pairs of opposites
slugging it out and then the truth shining down after the
battle'--but I do think the system works better when we don't
have high polarization and the extreme adversary system of
good guys and bad guys. Maybe it's the civilized version of
the bloody conflict between Arjuna's army and the army of his
'enemy'. Krishna exhorted him to fight, saying that only in
this manner could conflict be resolved into truth. Arjuna
regretted the wasteful loss of life. I regret the loss of time
and energy playing war games--we shouldn't have to be winners
or losers--a course of action is there to be discovered. What
you don't need is somebody to rush in and say, "well, what do
you think it is?" Just come in and say, "you're right, there
is a way. Let us find it."
After Alan's and my initial testmony and Alan Post's
comments, Cunningham the arch conservative, as I said, gained
the chair's permission to interrupt.
"Mr. Dunlap and Mr. Sieroty, believe it or not I've read
this 33 page bill of yours from cover to cover. You're talking
about eliminating capital gain exclusion and depletion
allowances and adding extra brackets on income tax--despite
all your subtle nuances and fine technical language, what your
bill actually does is soak the rich. You can't get away with
this one. Robin Hood was an outlaw," he smashed his fist on
the desk before him, "and he's dead." The assemblyman to his
right actually felt threatened and pushed his chair, which was
on wheels, back away from Cunningham.
I might have said, "Just because you've gotten away with
screwing the poor for forty years doesn't mean that when we
try to stop this we're soaking the rich." But I answered,
"This bill doesn't soak the rich, it takes unfair advantages
away from them. Capital gain exclusion and oil depletion
allowances are unfair tax gimmicks created by, and for, the
rich."
Cunningham retorted, "What you call tax gimmicks are
legitimate incentives carefully woven into the fabric of our
tax structure so that business will expand and provide jobs
for the workers you pretend to be helping. You're pandering
for the support of a group who have nothing to lose, people
who have no stake in society. They need the help of private
enterprise, not pious pretending do-gooders the likes of you."
Alan said, "It's true that those we seek to benefit have
less stake in society, in a material sense, than the wealthy.
For this reason the wealthy have more to lose and should pay
more (rather than less through loopholes) for government
provided property protection services--Police, Firemen, the
Military--"
"...besides that, Bill," I added, "if private enterprise
is this great job giving bonanza to the human race, how come
it needs to be propped up by a tax subsidy? You'd think it'd
be weaned by now--gone on beyond the stage of 'infant
industry'. Big Business ought to be eating meat and potatoes,
not sucking milk and pablum."
Cunningham and I could've gone back and forth for a long
time. Our concepts were so different, we'd of course never
convince each other, and we weren't exactly talking to each
other, anyway; both of us were speaking to the press and
others in the audience. There were about fifty observers
besides committee members and staff. Fortunately for me at
this point, the committee chairman interrupted, like someone's
mother breakng up a sandlot baseball game, saying, "It's time
for Johnny to come in; it's too cold, or wet, or dark, or it's
time for dinner. Come on in Johnny." And Johnny's glad 'cause
his team's ahead, and they all declare Victory. In this case I
was glad, because I'd had the last word.
The committee chairman said, "It isn't so easy to be a
small businessman. I speak from experience. What with
multinational corporations telling you what you can and can't
do and labor unions and government regulations and taxes to
boot, it's tough. I'm afraid this bill would make it harder on
small business."
Alan pointed out that small businesses don't usually have
access to investment loopholes, but how it really works is:
every small businessman thinks he's gonna get rich, and so he
defends all of the tax loopholes that are available to big
business and the wealthy who have investment money to play
with. In reality one out of 856 small businessmen do get some
money to work with, but most stay small--or quit and become
employees--or go broke. Many more go broke than strike it
rich.
At this point the chair considered it appropriate to call
a witness from the Lodi Chamber of Commerce, who was
testifying as a representative of the big State Chamber of
Commerce, a Big Business dominated lobby. He said, "Mr.
Chairman, it's just like you say. Between the multinationals,
the unions, and the government, we have it rough. I have a
clothing store and I work hard, and some years there isn't any
profit, and the employees get everything--then a good year
comes along and you may live a little better, but with this
bill that'd be about all. With higher tax brackets taking a
big share of your profits you've got nothing to put back into
your business."
I responded, "Mr. Chairman, this is an example of what
Alan was talking about--big business using small business to
give a phony argument for it. This retail clothing merchant
wouldn't be adversely affected by our bill--it allows him to
average his income over four years--all he has to do is take
that one good year and average it with the previous three--and
he won't hit the higher tax bracket."*
The chair recognized Assemblyman Shindler, who said, "I
note on page four, in the second paragraph, line 21--that you
________________
*The 1986 Federal and '87 California Tax Bills eliminated
averaging, which in my opinion was a fair adjustment for
taxpayers.
make a reference to such and such and such--what does that
mean?"
"That doesn't mean anything--it's crossed out."
"Oh," he said, "that's right." A little laugh ran through
the chamber. The chair next called for other opposition
witnesses, and the chief lobbyist for the California
Manufacturer's Association was the first to arrive at the
podium. He gave a set brief speech which I'd heard many times
before, "The very fact that this bill has come up before the
legislature is a terrible thing for the business climate in
California. Obviously, it must be defeated, but the very fact
that it has come up will alarm those now ready to invest their
capital..."
The S.O.B. said this kind of thing over and over, but we
had to sit there and let the guy finish--he went on and said
more. Instead of screaming YOU FAKER, YOU SAY THAT EXACT SAME
THING EVERY TIME SOMETHING HAPPENS YOU DON'T LIKE, I shook my
head and bit my tongue. One committee member nodded in
agreement, another gave his approval aloud. The favorable
reactions to this pap reminded Alan and me that the votes
weren't there. We were fighting a loser, but we had to keep it
up with spirit, because the reporters were there and they
seemed to be paying attention and taking notes at the right
times.
Sometimes committee meetings drag on and on with repet-
itive testimony. Legislators have been known to nod and nap. I
can remember getting up to get coffee to keep awake. I also
used to carry my mail to committee hearings, and when I wasn't
terribly involved, I'd read it. I imagine the Sergeant at Arms
would at times be appalled at the mess I left on the floor by
my seat in committee. I'd take a big file of mail with me and
read it. Those things I read and didn't need to respond to or
didn't want to keep for any purpose I'd just throw on the
floor under my chair. I could have put them in a pile and put
them in a basket later, or given them to someone to throw
away. I'm not sure whether making a mess was my way of
advertising how hard I worked, or whether I was just proving I
was a bigshot and making someone clean up after me. I can also
remember working in my office at night and eating salted
peanuts--the kind salted but still in shells. I used a waste
basket but I wasn't very careful. When the secretaries came to
work in the morning I'd hear them say, "I see John was on a
peanut binge again last night."
The chair was about to close the meeting when freshman
Assemblyman Rogers, who was an M.D., indicated his desire to
get in on the act, and was recognized. "This increased tax on
capital gain seems unfair to me. A couple of years ago I had
2000 dollars in spare cash and bought some Pacific Lighting
stock. It went up, and last week I sold it for 4000 dollars
and bought oil company bonds. If your bill passed I would have
to pay high taxes on that 2000 dollar gain and I couldn't buy
as many bonds. Really, all I did was sell something I already
owned."
"Right," Alan said, "but in selling you made a 100
percent profit --is there any reason you shouldn't be taxed on
it, the same as a man who had to work full time for a month or
two to earn that much money?"
"But I didn't earn it. It came because I sold something I
owned already, which I bought with savings I had earned as a
physician."
Alan said, "Doctor Rogers, profits are earnings. Frankly,
I believe it's immoral for a man who works with his hands, his
body, or his brain to be taxed on everything he earns, when
someone who gets a windfall profit is taxed on only half of
it. However, your particular transaction would not be affected
by our bill, because the changes would be phased in over a
three year period."
Alan and I were pleased with the hearing, despite our
defeat. The vote was eight to three for a 'motion to hold in
committee', the standard motion to kill a bill. Unruh
apparently hadn't come through with any votes. Every committe
member was interested enough to get there and be on record.
Most of our background arguments about the function of
government, and taxing according to the ability to pay, as
we'd discussed at lunch, got into testimony. We went a little
further into the 'User Theory of Taxation'.i.e. conservatives
arguing that: taxes should be based on benefit, so they
shouldn't, for instance, pay for public education, because
they don't have as many children, (and, their children often
go to private schools) and, since THEY don't use public health
and welfare programs, they shouldn't have to pay for them.
Though we didn't subscribe to this 'benefit' theory, Alan
and I were able to get across the fact that the wealthy do
benefit from government far more than they admit--for example,
the institution of private property has been given sanctity by
government, and is somewhat dependent on government
protection. Police, courts, jails, and prisons; probation and
juvenile delinquency laws, are chainlink fences around private
property; fire protection's in there too. The wealthy have
homes to protect, and of course all commercial and industrial
property is owned by wealthy individuals or corporations and
is protected. And, finally, there's the tremendous public-
financed cost of the military. If the Army/Navy/etc are there
to protect property, we've already said who owns it and
benefits. If it's there to protect common citizens, remember
that in our past major wars from Vietnam on back, these
people, although they don't generally own the land they're
defending, are the ones pushed out on the Front by the
military machine (and their crosses stretch for acres over the
hills of Golden Gate and other national cemetaries.
I've talked about reasons to tax the wealthy, and I might
add, that through spending those taxes to benefit people
generally, the wealthy thus benefit, in the creation of a more
stable society. Indirectly, their wealth is made more secure--
without police and without repression....on the other hand,
tax-supported progressive education could lead to a re-
appraisal of values, and a general will to reduce extremes of
wealth and poverty--thus perhaps undermining the 'money
empires' (and the psychology of the Lottery). Few of us are
really qualified to paint the picture of this Better Way Of
Life, though--one which would emphasize spiritual, scientific,
or artistic progress--demoting individual/material gain.
We also managed to point out that government should make
up for the lack of perception of different strata of society
due to separation. Even some of the conservative members were
impressed by this argument, but not Assemblyman Bill
Cunningham, who said, "I'd prefer to maintain my own option of
generosity, rather than turn it over to the greenclad
representatives of Sherwood Forest." At the conclusion of the
hearing I think anyone listening with a half open mind
recognized that Alan and I weren't just modern Robin Hoods--
that our specific tax suggestions had merit. What Cunningham
said, though, drew a laugh--it was funny in a way, but it also
showed that Alan and I hadn't really struck home or nobody
would've laughed.
I spent 12 years involved in tax reform with only a few
crumbs of success to show for it. But then, trying to create a
fairer tax system is a continuous process, not one sudden
shining product--and there's always someone there to try to
work things for their personal benefit. In 1976, after four
years of trying, I finally got through a major constitutional
tax reform measure--only to have it wiped out in 1978, before
it had a real chance to work.*
______________
*Since 1910 the California constitution had provided that it
took a two-thirds vote of both houses of the legislature to
tax corporations (i.e. Corporate Franchise Tax) but only a
simple majority to put a tax on "The People" (for example
personal income tax). This discriminatory protection for
corporate wealth was patently unfair. In 1975, Senate
Constitutional Amendment #1, authored by me, passed both
houses of the legislature and was approved by a 60% vote of
the people in June of 1976. It provided for all taxation with
a majority vote. Given time, the elimination of the
constitutional inequity might have created opportunity for a
more fair tax system. Unfortunately, just two years later in
1978, the prop 13 anti tax initiative proposal designed mostly
to curb the property tax, also made all state taxes (corporate
and personal) subject to a two-thirds legislative vote.
Offhand, one might think this would protect the people more
than a majority vote, and produce a more fair tax system.
Actually, I believe the opposite result occurs. A minority,
one more than a third of either house in the legislature, can
thwart the will of the majority. This constitutionally imposes
a tyranny of the minority, and what this minority generally
protects is the vested wealthy interests.
However, as in many other parts of my job, my major
function was preventing bad things from happening, rather than
creating miracles of reform. And as I've said, Reagan was the
major badguy we were up against. I wish I could say we stopped
him dead in his tracks but we didn't. We did cut down on his
effectiveness, we protected State Government from decimation--
but it suffered.
Reagan had been unable to get the worst of his regressive
tax measures and restrictions through the legislature, because
they involved the need for constitutional amendment and he
just didn't have the two-thirds vote of both houses. He even
tried putting them on the ballot through the Initiative
process (and did get them on it), and manuvered the election
to November 1973, as a special election. With nothing on the
ballot but a complicated Tax initiative, we feared (and he
hoped) there'd be no inducement for many people to vote. A
heated contest for such offices as Governor, President, or
U.S. Senator tends to 'bring out the crowd', or a large
representative vote (like the World Series even gets me
interested in baseball), but a complex tax proposition lacks
dramatic appeal, and under these circumstances 'the crowd'
might stay home, while the Republicans, ever watchful of their
tax dollars, would automatically vote. So, it looked like
Reagan might successfully endrun the legislative process. Many
of us screamed 'FOUL PLAY', but he was technically within the
rules. What beat him was a coalition of Assembly Democrats led
by Speaker Bob Moretti, money from moderate lobbying
interests, and a halfway enlightened press and media. Reagan
had overplayed his hand. He thought everybody'd be for him and
they weren't. This defeat may be one of the reasons he didn't
seek a third term in 1974--more than likely, however, he just
figured his chances for the presidency were greater if he got
out of state government while he was otherwise ahead.
As history is written, the Reagan years will be described
as 1980-88. My Reagan years were earlier--'66-74. I was just
one of several jackals snapping at him, in those 8 years--or
maybe just another gnat buzzing around him (from his point of
view).
This is not a biography of Ronald Reagan, or really a
'political' treatise, and I've probably already in talking
about him stretched the parameters of this book a bit--maybe
to spice it up a little with the romantic aroma of Reagan, and
ride into the publishing limelight on his dubiously famed
coattails...? (I started out that last sentence with the idea
of using the word 'aromatic'--picturing a hungry publisher
with his nose in the air nostrils twitching at my mentions of
bigname politicos. Of course as time goes on certain names
may not spark so much public memory. I think of Reagan now..or
imagine him as he is now--in his decline, guarded by
nurses...what is he doing and thinking??)
