Gut and Amend: A Convenient Loophole in the Passage of AB 35

On May 23, 2022, Governor Newsom signed into law AB 35—a bill its proponents describe as the “Modernization of MICRA” (Medical Injury Compensation Reform Act). Effective January 1, 2023, AB 35 codifies an annual increase in noneconomic damages (i.e., "pain and suffering").

It is not unusual for the governor to sign a bill in the middle of a legislative cycle if the bill has gone through its customary course, but AB 35 had a different route—it had a swift passage through policy committee hearings and both Assembly and Senate floor votes by a mechanism legislators refer to as “Gut & Amend.” As the term suggests, “Gut & Amend,” is a quick, crafty method to advance a legislator's bill.

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AB 35 started its cycle like thousands of bills proposed by legislators at the beginning of the legislative two-year cycle in 2020. AB 35 was initially introduced by then Assemblymember Ed Chau in December 2020 with the intent of addressing false information on social media platforms. The bill was assigned to its committee hearings where the proposed language was completed and reviewed, voted on, and passed out of committee onto the Senate to proceed with a similar course of action. AB 35 continued its life as a social media bill until June of 2021, when it was scheduled for a Senate Judiciary Committee hearing. At this juncture, AB 35 stalled. It may have been because Assemblyman Chau resigned his seat after Governor Newsom appointed him as a Los Angeles County Superior Court Judge. 
The bill author was gone, but the bill was not.

Fast forward to April 27, 2022, when Senate Rule 26 was invoked and AB 35 now had a new author, Assemblywoman Eloise Gomez-Reyes. AB 35 was now back in play—not as a social media bill, but rather a vehicle for proponents of MICRA "modernization" to introduce language to fundamentally alter the landmark statute.

Through the invocation and suspension of rules, the original content of AB 35 was removed—or “gutted”—and in its place, the new or “amended” language was entered. But why of all stalled bills in the cycle, was AB 35 the chosen one? In its previous form as a social media bill, AB 35 had already passed through the review, analysis, and committee hearing process in the Assembly. This meant that AB 35 only needed to make its way through the Senate to complete its journey. This process fosters very favorable conditions for a bill to swiftly pass without the traditional bill introduction, analysis, and hearing process.

With the freshly transplanted language written into a bill already slotted for a Senate Judiciary Committee hearing, AB 35 was out of its policy committee on May 3, 2022, and ready for a Senate floor vote. All rules pertaining to the 30-days public access to review the bill were suspended. On May 5, 2022, the Senate unanimously passed AB 35. It was then sent back to the Assembly floor for a concurrence vote on May 11, 2022. In less than a month's time MICRA, a piece of legislation that has protected countless physician providers and their practices and has ensured the continued accessible options for care for over four decades, was itself gutted. Ultimately, the effect of passing AB 35, with such little consideration for serious analysis, thoughtful debate, and extended public review, will likely come at a very high cost.   

Gabriela Villanueva is CAP’s Government and External Affairs Analyst. Questions or comments related to this article should be directed to GVillanueva@CAPphysicians.com.