The California Legislature’s Approach To #MeToo: Better You Than Us

Thursday, September 12, 2019
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Come the time President Trump faces the electorate next year, he’ll have some explaining to do for promises unmet—for openers, not cancelling all funding of “sanctuary” cities, not pushing for congressional term limits, not bringing back waterboarding.

And, with regard to one of then candidate Trump’s more boisterous claims, the 45th president has yet to “drain the swamp”; the Washington of 2019 is little different from the 2016 version in that lobbyists still rule the roost.

Before any Californian smugly says “I told you so,” I suggest they take a closer look at their state government in Sacramento and the question of whether it’s operating on a higher moral plateau than that of the folks back in Washington.

One matter that I find worrisome: the California State Legislature’s approach to #MeToo reforms.

As recently as the beginning of 2018, the question wasn’t whether the legislature would pass new laws for the greater sake of gender equality. Rather, it was just how many legislative changes would come pouring out of Sacramento in an election year when the Democratic power establishment was looking to cement supermajorities in both legislative chambers.

Plus one other pressing political concern . . .

Late in 2017, the legislature was caught with its pants down, figuratively, if not (in some lawmakers’ cases) literally, when it came to the treatment of women in Sacramento’s corridors of power.

A letter signed by 150 women involved in state politics—lawmakers past and present, lobbyists, political consultants—decried “the dehumanizing behavior by men with power” in California’s capital city.

The letter added: “Men have groped and touched us without our consent, made inappropriate comments about our bodies and abilities. Men have made promises, or threats, about our jobs in exchange for our compliance, or our silence. They have leveraged their power and positions to treat us however they would like.”

“Why didn’t we speak up? Sometimes out of fear. Sometimes out of shame. Often these men held our professional fates in their hands. We’re done with this.”

The legislature got the message—and got to work.

But not because it was appalled by Harvey Weinstein’s alleged misdoings. Instead, it had become readily apparent that lawmakers’ behavior was a growing political liability (by the time the legislature reconvened in early 2018, several of its members had already resigned from office or were under investigation for sexual misconduct claims).

So what did the legislature do in 2018 to right past gender wrongs?

On Jerry Brown’s final day to approve or veto legislation forwarded by the legislature, the now former governor signed off on a series of employment-related measures that:

  • made unenforceable any provision in a contract or settlement waiving a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or alleged sexual harassment on the part of the other party when the party has been required or requested to attend the proceeding pursuant to a court order, subpoena, or written request from an administrative agency or the Legislature;
  • added “investor, elected official, lobbyist, director, and producer among those listed persons who may be liable to a plaintiff for sexual harassment” under California’s Civil Code;
  • prohibited provisions in settlement agreements preventing the disclosure of factual information relating to certain claims of sexual assault or harassment;
  • compelled California employers with five or more employees to provide at least two hours of sexual harassment training to all supervisors—and at least one hour of sexual harassment training to all nonsupervisory employees—every two years; and
  • required public companies who have principal executive offices in California to have a set number of women on their board of directors.

However, one measure that didn’t make it to the governor’s desk would have prohibited the state assembly and the state senate from paying any compromise or settlement of an action by a legislative member that constituted sexual harassment.

Introduced by 10 assembly members (eight Democrats and two  Republicans), AB 1750 “died at the desk” during the legislative session, meaning it was left untouched while the assembly tended to other legislative matters.

Translation: the assembly—or, more to the point, majority Democrats who control the process—saw no reason to change the practice of using taxpayer dollars to cover lawmakers’ piggish behavior (according to the Associated Press, the state legislature racked up more than $1.8 million in legal costs from sexual harassment investigations, the equivalent of 17 assembly members’ salaries, during 2018 and earlier this year).

A 2019 version of that ignored measure (AB 1094) came up for consideration again this summer. The result: in June, assembly members voted on whether to allow the bill to have a hearing and an up-or-down vote in committee, a procedural rule change that in effect allows the Democratic majority to avoid political discomfort.

Not surprisingly, AB 1094 was blocked from being forwarded to the assembly Judiciary Committee on a 16-45 vote (which means that, in the 80-member chamber, 19 members either weren’t present or opted to abstain).

What does this say about the state of the California State Legislature in 2019?

I wouldn’t look for an act of sheer political tone-deafness, such as a resolution praising Roman Polanski should he win an Oscar next year (arrested in 1977 for drugging and raping a 13-year-old girl, the famed director pled guilty to a lesser offense of unlawful sex with a minor and since has been a fugitive of the United States ever since.)

And, as an election year approaches, I’d expect plenty of harsh words directed at a Republican president whose gender-gap problem complicates life for GOP candidates, particularly in suburban districts (a good example being California’s Orange County, where Democrats now control all seven congressional seats).

But on the question of #MeToo and sexual harassment, is California’s legislature willing to hold itself truly or just partially accountable—in this case, going the extra step and making lawmakers pay out of their own pockets for their uncivil actions?

Until that happens, maybe we should recognize Sacramento’s approach to #MeToo reforms for what it seems: an attitude of “better you than us.”