“Laws don’t magically appear in this building. Someone drafted it; someone asked for it,” Mr. Fong said during the hearing. “As lawmakers, we deserve to know how the sausage was made.”
AB 2654 would have prohibited policymakers, legislators, and staff from lawmakers and the governor’s office from entering into nondisclosure agreements when discussing legislation. The bill also would have made any such agreement unenforceable.
“As a lifelong advocate of transparency ... it has been troubling to learn about the use of nondisclosure agreements when drafting legislation,” Mr. Fong said. “How can we create nuanced, effective policy, when we as members are unable to obtain essential information due to certain parties signing NDAs?”
He said the bill was meant to restore the public’s faith in the Legislature.
“The fundamental principle of this bill is to protect the institution ... and the legislative process,” Mr. Fong said. “It is my biggest concern that we are actually trying to shield the public from information, and from legislators as well, that is critical to our votes and how laws are made.”
The author argued that nondisclosure agreements should be kept out of legislative discussions.
“Transparency in government is the foundation of our democracy. It builds trust and confidence in elected and government officials,” Mr. Fong said in the committee’s legislative analysis. “The crafting of public policy should be done with full transparency, and on behalf of the public, not shielded by nondisclosure agreements.”
Supporters of the proposal agreed and said banning such agreements would not be detrimental to policy discussions or legislation creation.
“However sensitive or fragile the discussions may be, there’s really no justification for NDAs in lawmaking,” Tim Anaya, vice president of marketing and communications for the Pacific Research Institute—a public policy group based in California focused on personal responsibility and individual freedom—wrote April 24 on the institute’s website. “The legislative process would certainly not be hindered in any way if they were abolished.”
Other supporters, including the Howard Jarvis Taxpayers Association and the California News Publishers Association, argued that while nondisclosure agreements are beneficial in the private sector, they should not be used to conceal the legislative process.
“Without transparency, trust in government erodes, especially if statutes that apply statewide were crafted under legally binding confidentiality,” the groups wrote in the committee’s analysis. “Nondisclosure agreements certainly have their place to protect propriety and financial information, but they should not be used to hide how public policy is made.”
The supporters called for the passage of the bill to protect the public’s interest.
“This is a troubling trend that cannot continue,” the groups wrote. “The crafting of public policy should be done with full transparency and on behalf of the public, not shielded by nondisclosure agreements.”
Both Republicans on the panel, Assemblymen Bill Essayli and Tom Lackey, voted in favor.
However, Assemblywoman Gail Pellerin, committee chair, voted against the measure while the five other Democratic members chose not to vote—a tactic used regularly by the party—thus killing the bill.
Opponents, including the California Restaurant Association and California Chamber of Commerce, said negotiations often contain confidential information, including financial data and trade secrets, that must be shielded by nondisclosure agreements.
“When it comes to discussions between private parties, we see NDAs as critical to allowing frank discussions around complicated issues,” Ben Golombek, executive vice president and chief of staff for policy for the California Chamber of Commerce, said in a letter written to Mr. Fong on April 19. “NDAs are necessary to ensure companies can remain at the table without fear that their financial position, intellectual capital or other proprietary information will become public.”
Suggesting that AB 2654 would limit lawmakers from understanding complex issues, he argued the measure would prove detrimental to the state if passed.
“We have serious concerns that your legislation would only serve to hurt policy making by making good-faith negotiations more difficult,” Mr. Golombek wrote. “While we believe in the need for transparency in state government, we do not see posturing and unnecessary legislation like AB 2654 as doing anything to further that cause.”
When asked by committee member Mr. Lackey during the hearing if the Cal Chamber was aware of NDAs being used in legislation, Mr. Golombek responded by saying his organization does not comment on prior bills.
Though widely reported that secret agreements were used in the drafting of the fast-food bill, committee staff wrote in the Legislative analysis that no evidence has been found to suggest that legislators or their staff or any members of the governor’s office were involved in such agreements.
During the hearing, Republican committee member Mr. Essayli was cut short by Chair Pellerin when he attempted to question the opposing witnesses about the use of nondisclosure agreements when communicating with lawmakers.
“I think this is getting a little absurd,” Ms. Pellerin said before abruptly ending the line of questioning and threatening to end the hearing.
Mr. Essayli again attempted to question the opposition witnesses, though his microphone was muted by the committee chair.
“When trying to pass a bill to ban NDAs to stop this corruption, the Elections Committee today silenced me, cut my mic, and killed the bill,” Mr. Essayli posted April 25 on X.
After blocking the bill, the committee ultimately granted reconsideration—which allows the bill to be brought back to the committee with amendments at a later date.
