Attorney legislators get more bills passed, regardless of party

By Malcolm Maclachlan

SACRAMENTO -- "When a legislator is married to a judge, it makes for very unique pillow talk," outgoing Sen. Hannah-Beth Jackson told her colleagues during a recent Judicial Council meeting.

This was a reference to her husband, retired Santa Barbara County Superior Court Judge George C. Eskin. Santa Barbara is known as a refuge for Hollywood power couples, but few wielded as much actual power as these gray-haired grandparents.

Jackson, a Democrat, was saying goodbye after 14 years as a legislator, nearly half of it as chair of the influential Senate Judiciary Committee. She'll leave after passing high profile bills on sexual harassment and employment, as well as a measure requiring women on corporate boards which has so far stood up to legal challenges.

She recently told The Daily Journal her 20-plus years as a trial lawyer were key to her legislative success.

"The Legislature has to understand how the courts operate," Jackson said. "There aren't that many people in the Legislature who have actually ever practiced law, who have been in a courtroom and understand how the judicial process works."

The numbers back Jackson up. For the past three years, The Daily Journal has crunched the numbers and come up with a consistent conclusion: Attorneys appear to make more effective legislators in that, on average, they get more bills signed into law than non-attorneys.

These results barely changed despite Gov. Gavin Newsom signing fewer bills than any governor since 1966 -- the year before the state switched to a full-time Legislature. The Legislature took an extra-long summer recess this year and focused on a few subject areas because of the COVID-19 pandemic.

Sen. Hannah-Beth Jackson

Democratic senators with law degrees had an average of 2.9 bills signed, compared to 2.5 for their non-attorney counterparts -- nearly a 14% advantage. Democratic lawyer Assembly members passed 3.8 bills to 3.1 for non-lawyers, about an 18% difference. These numbers are closely in line with results from other recent years.

"There are obviously skills that we learn as attorneys that help us navigate lawmaking," said Assemblywoman Lorena Gonzalez, D-San Diego. "I think that's natural."

The UCLA School of Law graduate has been among the most effective legislators at getting her bills signed into law over the past three years -- and not because she chose easy or noncontroversial topics. She has passed several bills related to sexual harassment and other contentious topics.

Even Gonzalez's losses show her prominence in the Legislature. Her gig worker bill, AB 5, that codified the California Supreme Court decision in Dynamex Inc. v. Superior Court, 2018 DJDAR 3856, sparked the most expensive initiative fight in state history. Gig work companies including Uber Technologies Inc. and Lyft Inc. spent $203 million to convince voters to exempt them and their workers from the law.

Gonzalez said in the coming year she is likely to continue efforts to regulate the gig economy, determining where these companies still have liability and trying to find ways to make the industry safer for drivers and passengers.

Some who follow the Legislature have also noted the number of attorneys has fallen over time, from 33 of 120 senators and Assembly members in 2004 to just 19 in 2016. But even during this low point, lawyers were more common than any other single profession.

The numbers have since rebounded. There will be 29 attorneys when lawmakers return on Dec. 7. This will include new senators David Min, a UC Irvine School of Law professor, and Santa Clara County Supervisor David D. Cortese.

The liberal Consumer Attorneys of California endorsed both candidates. The group has been active in legislative elections in recent years, including in the growing number of Democrat-on-Democrat races, backing a mixture of attorneys and non-attorneys.

"We don't have enough lawyers in the Legislature," said Micha Star Liberty, the past president of the consumer attorneys group..

The rising and falling numbers of attorneys in the Legislature overall have largely hinged on the minority party. Democratic attorneys in the Legislature have outnumbered their Republican counterparts going back to at least the early 1990s, often by wide margins.

There were 10 Republican lawyers in the Legislature in 2004, but this fell as low as three during subsequent years. These numbers took a hit in the 2018 elections, when well-liked moderate Republican Assemblywoman Catherine Baker lost her seat and Assemblyman Brian Maienschein defected to the Democratic Party.

Next year, the Legislature will feature 25 Democrats with law degrees but just four Republicans: Sen. Andreas Borgeas, R-Fresno, and Assemblymen Jordan Cunningham, R-San Luis Obispo, James Gallagher, R-Yuba City, and Kevin Kiley, R-Rocklin.

This isn't just a matter of there being more Democrats overall; a Democratic lawmaker will be about twice as likely as a Republican to be an attorney. More than a third of Democratic Senators will hold law degrees.

The small numbers on the Republican side make it harder to test the advantages of being an attorney. Maienschein had 24 bills signed as a Republican in the 2017-18 session, a number in line with the most prolific and influential Democrats. Then he got 18 more signed as a Democrat in the 2019-20 session.

The four current GOP attorneys passed just two bills between them during the unusual 2020 legislative year, however, and nine in 2019. These numbers are roughly in line with their non-attorney Republican colleagues.

But most of that success came from Gallagher, who passed both 2020 measures and another four in 2019. He had ten bills signed in 2017-18, among the most by any Republican legislator besides Maienschein in that period. He remains a part-time attorney as part of a two-man business law practice in Yuba City.

"I think we've had some pretty good success," Gallagher said. "I remember a congressional chief of staff telling me a law school education is a good tool to have in your tool belt."

Part of his strategy has been to find specific, often technical problems where he can find solutions the majority party could agree with. Gallagher said his ability to "get down in the weeds" has helped, but added the people skills he's learned as an attorney might be more important.

He might test those skills in the coming year -- that is, if his Democratic colleagues carry any ill will over a recent court case. Representing themselves, Gallagher and Kiley won a rare victory over Newsom's pandemic orders. Sutter County Judge Sarah H. Heckman recently finalized her ruling that Newsom's order for all registered California voters to receive a mail-in ballot was unlawful, though the 3rd District Court of Appeal stayed her ruling. Gallagher v. Newsom, CVCS20-0912 (Sutter Super. Ct., filed June 12, 2020).

Counting up the number of bills signed into law is, of course, an inexact measure of power. Neither Assembly Speaker Anthony Rendon, D-Lakewood, nor Senate President Pro Tem Toni Atkins, D-San Diego, had a bill with their name on it signed by Gov. Gavin Newsom this year. Yet no one doubts their influence.

The differences between attorneys and non-attorneys are also far smaller than those between the parties. The average Republican had just one bill signed this year. Eleven of the Legislature's 27 Republicans had zero bills signed in 2020.

The pandemic blunted the traditional partisan advantage held by Democrats by holding down the total number of bills. Newsom signed just 372 bills in 2020, down from 870 in 2019.

But when considered across the entire 120-member Legislature, an ability to get bills passed and signed remains a fairly good proxy for power. Lawyer-legislators have not only passed many bills, they've been behind some of the most ambitious and hotly debated legislation.

Take Sen. Robert Hertzberg, D-Van Nuys. He regularly places in the top half of legislators in terms of bills passed.

Hertzberg distinguished between just having a law degree and those who come to the Legislature after time in the courtroom or similar experiences in the trenches. He said some of the lawmakers he admires the most are also experienced attorneys, including former assistant U.S. attorney Rep. Adam Schiff, D-Hollywood, and his California Senate colleague Thomas J. Umberg, a former federal prosecutor who tried terrorism cases. He also praised Gallagher as a "bright guy" who could get bills passed despite being a conservative in a liberal Legislature.

"Hannah-Beth Jackson tried cases. She was a real lawyer," Hertzberg said. "[Sen. Scott] Wiener was a city attorney. They have an ability to be in court."

Then of course there's regulating the legal industry itself. Assemblyman Mark Stone, D-Scotts Valley, has chaired the Assembly Judiciary Committee for six years. He noted that between the voters' passage of Proposition 140 in 1990 to and the changes to term limits through Proposition 28 in 2012, Assembly term limits totaled just six years. If he can continue in the role in 2021, he wouldn't just pass Jackson's tenure but could be the longest-serving Judiciary Committee chair in over a generation.

Stone also has plans, including increasing diversity in the legal profession and modernizing the Commission on Judicial Performance. He also said the ongoing issues around the State Bar exam and passing score came to a head in 2020 due to the pandemic.

"It's been heightened because of students not being able to sit for the bar exam. The online bar, all of that fits into our oversight obligation," Stone said.