Mike Fong has cast more than 6,000 votes since he joined the state Assembly in 2022 and never once voted “no.” Pilar Schiavo is newer to the Assembly, but she has yet to vote “no” after more than 2,000 opportunities.

Remarkably, their Democratic colleagues in the Legislature are not much different. Using our new Digital Democracy database, CalMatters examined more than 1 million votes cast by current legislators since 2017 and found Democrats vote “no” on average less than 1% of the time.

Why? It’s not something they want to talk about. Democrats have had super-majorities in both legislative chambers since 2019, so most votes involve bills from their political colleagues. But the legislative leaders and lawmakers contacted by CalMatters declined repeated requests to explain a pattern that might appear like a rubber stamp for deals made out of public view. And it seems to be sanctioned by leaders.

“There’s only two fucking buttons on your desk: There’s a green button, and there’s a red button,” then-Assembly Speaker Anthony Rendon told the California Labor Federation last year in remarks reported by Politico. “Ninety-nine percent of the time, the green button is the labor button. Ninety-nine percent of the time, the green button means you’re doing the right thing, and the red button means that you’re an asshole.”

Rendon’s office declined to comment or make him available for an interview.

Instead of voting “no,” the data, video and transcripts in CalMatters’ Digital Democracy project reveals that legislators will often decline to cast a vote. Lawmakers widely use the tactic as a courtesy to avoid irking fellow legislators who’d get upset if they vote “no” on their bills, but it’s a controversial practice that critics say allows them to avoid accountability.

“There are a lot of people who abstain and who years later will claim, ‘Oh, I was in the bathroom,’ or ‘I was gone,’ or ‘I was in a meeting,’” said Mike Gatto, a former Democratic Assemblymember from Los Angeles. “It provides them an excuse after the fact to claim that they were not there. I always thought that was cowardly, the opposite of courageous.”

Last year, at least 15 bills died due to lack of votes instead of lawmakers actually voting “no” to kill them.The most notorious example was when a bill to increase penalties for child sex trafficking died in the Assembly Public Safety Committee because Democrats did not vote. After widespread condemnation, Gov. Gavin Newsom got involved, prompting some committee Democrats to apologize and re-vote on the measure that Newsom later signed.

At least three fentanyl-related bills also died last year due to Democrats refusing to vote on them, infuriating Regina Chavez, who advocated for the legislation. Her 15-year-old daughter, Jewels Marie Wolf, died from the drug in 2022.

“I personally am insulted, because I think everything should be on the record when you hold a state title,” she said. “That is what they signed up for to represent us.”

Chavez along with a group of mothers of youth who died from fentanyl learned about the prevalence of non-votes by exploring the Digital Democracy database.

In a glaring example they found, a bill had 22 bipartisan cosponsors and would likely pass if it reached the Senate floor, but it died in the Senate Public Safety Committee when the four Democrats — Nancy Skinner, Steven Bradford, Aisha Wahab and Scott Wiener — declined to vote by staying silent during the roll call. None of them responded to interview requests.

The bill, called “Alexandra’s Law” for a young woman who died from the drug, would have required judges to read a warning to defendants who’d been convicted of dealing fentanyl that if they dealt the drugs again, they could be charged with murder if someone died after taking their fentanyl.

More than 100 people testified in the hearing, almost all in support of the bill and many sharing their own experiences with fentanyl deaths. Some of the Democrats who did not vote had a lengthy discussion with the bill’s author, Sen. Tom Umberg, a Democrat and former federal prosecutor. (This link to Digital Democracy includes information about the bill, SB 44, as well as video and transcripts of the hearing).

“It’s beyond frustrating,” said Laura Didier, who has testified several times in Sacramento about fentanyl legislation and whose 17-year-old son, Zach, died from the drug in 2020 (See video and transcripts of all Laura Didier’s testimony).

Didier said it took an enormous amount of work to assemble the bipartisan group of bill sponsors and the supporters who testified. “To me, it just makes no sense that … people, by withholding their vote, can kill that momentum. You know, it’s very, very frustrating.”

In another example last year, the former chairperson of the Assembly Public Safety Committee cast a “no” vote to kill a bill, AB 367, that would have led to longer prison sentences for fentanyl dealers. Seconds later, he withdrew his vote after all five of his fellow Democrats on the committee killed the bill by not voting.

The then-chairperson, Reggie Jones-Sawyer, a Los Angeles Democrat who is running for Los Angeles City Council when his term expires this year, didn’t return a message from CalMatters.He told the committee last spring that he was a mortician during the crack cocaine epidemic, so he empathized with families who lost loved ones to fentanyl, but he sided with activists who testified that people of color have unfairly and disproportionately borne the brunt of harsh sentences for drug crimes.“Our communities were decimated by the War on Drugs,” he said.

Digital Democracy’s analysis

The CalMatters data analysis included more than 1 million votes currently sitting lawmakers have taken since 2017 in committees and on the Senate or Assembly floors. The analysis only included votes on actual bills. Routine resolutions were not included. The data was collected by Digital Democracy from the Legislature’s official bill-tracking website.The site records each lawmaker’s “aye,” and “no” votes. If a lawmaker does not vote on a bill, it’s listed as “NVR,” short for “No Vote Recorded.” The online system does not distinguish between a vote to abstain, an absence or when the legislator is present but no vote is cast.

Assemblymember Evan Low speaks with fellow lawmaker Phillip Chen at the Capitol on March 27, 2023. Photo by Miguel Gutierrez Jr., CalMatters

The CalMatters analysis reveals that 38 of the 94 members of the Democratic caucus have voted “no” 20 or fewer times since 2017. This, despite each senator and Assemblymember having thousands of opportunities to vote. Some of those lawmakers have served since 2017.

While all Democrats rarely vote “no,” some members stand out in the analysis.

They include Assemblymember Jesse Gabriel of Encino. He’s been in office since 2018 and has cast more than 12,000 “aye” votes. He’s voted “no” just nine times. Lisa Calderon of City of Industry has served in the Assembly since 2020 and cast nearly 9,000 “aye” votes. She’s voted “no” once.

Assemblymember Eduardo Garcia of Coachella has cast more than 15,000 “aye” votes since 2017. He’s only voted “no” eight times. Assemblymembers Schiavo of Santa Clarita Valley and Fong of Los Angeles are the two current members who have never voted “no.”

None of those lawmakers responded to CalMatters’ interview requests

Meanwhile, the Digital Democracy analysis showed wide discrepancies in not voting. Garcia, the Assemblymember from Coachella, had more than 2,000 NVRs, the most of any of his Democratic colleagues since 2017.

Fong, who serves on the powerful Appropriations Committee, stood out for another reason other than never voting “no.” As of last week, he only had 25 NVRs, the lowest abstention or absence rate of any lawmaker.Robert Rivas, who became speaker of the Assembly last year, has only voted “no” nine out of 12,308 times since he joined the Assembly in 2018. He abstained or was absent from voting 673 times during that period.

From left, Assemblymember Mike Fong and Speaker of the Assembly Robert Rivas. Photos by Richard Pedroncelli, AP Photo and Miguel Gutierrez Jr., CalMatters

“The Speaker will not be available for your story,” his press secretary, Cynthia Moreno, said in an emailed response to CalMatters’ request to discuss his voting record and the records of his fellow Democratic lawmakers.

Republicans and the red button

It’s no surprise that vastly outnumbered Republicans in the Legislature regularly vote “no” on Democratic bills. They do so on average 21% of the time. But CalMatters’ analysis shows they tend not to vote on bills at higher rates than Democrats.

The average Republican “No Vote Recorded” rate is around 12%. The average rate for Democrats is 4.5%.

James Gallagher, the Assembly’s minority leader, said it’s due to Democrats largely cutting the Republicans out of bill discussions, leading to situations where Republicans might not oppose a bill’s intent, but they don’t feel comfortable voting for language they can’t change.

“That (bill) might be at a place where you sort of agree with where they’re trying to go with it,” said Gallagher, a Republican from Chico. “But you’re just not really sure that the policy is really right and it’s taking into account all the different unintended consequences.”Gallagher has voted “no” 3,236 times since 2017, and he’s been listed as a “No Vote Recorded” 1,708 times.

Gallagher said he’d support making the process more transparent by requiring lawmakers to officially declare an abstention instead of the way it’s reported now, where the public has no easy way of knowing whether a member was actually absent or just declined to vote on a bill.

Bill Essayli, a Corona Republican who’s served in the Assembly since 2022, has the highest percentage of NVRs in the Legislature. Twenty-three percent of his votes are NVRs.

Essayli said he learned it’s better to abstain on some bills instead of voting “no” to avoid retaliation from Democrats. He said Democrats are “very sensitive” and punish legislators of both parties when they vote “no.”

He noted that last year, Democrats briefly stripped Bakersfield Democratic Assemblymember Jasmeet Bains of a committee assignment after she sided with Republicans and cast the lone Democratic “no” vote against Gov. Newsom’s gas-price windfall tax bill.

Essayli said he’s taken to abstaining from votes on bills he doesn’t support when he’s not trying to make a strong political statement. “Not voting is a polite ‘no,’” he said. “And then hitting the red button is like an ‘F no.’”

Essayli said Democrats have targeted him after voting “no.” The California Democratic Party put up a billboard in his district, accusing him of voting against fentanyl victims. He said it was retaliation for him voting “no” on legislation that contained a fentanyl provision that he supported buried in a large budget bill that he did not.

Former Assemblymember Gatto has heard all of the excuses about why lawmakers choose not to vote. Sometimes, lawmakers abstain to avoid an activist group or political opponent using their vote against them. Other times, they don’t want to irk a colleague who might feel passionately about a bill that a lawmaker doesn’t particularly care for. Other times, Gatto said, a non-vote is a lawmaker’s way of saying, “Court me. I want you to gather around my desk and promise me something I want.

”He said it’s better to just cast a “no” vote, when a lawmaker doesn’t support legislation.

“When people talk about how a very strange or poorly conceived proposal made it all the way through the Legislature, the answer is because very few people stood up and said, ‘This is bunk.’” he said. “When people do, and they do it with something as clear and unambiguous as a ‘no’ vote, it encourages other people to have the same courage to tell a lawmaker, politely, that this idea might not be the best one.”

###

The team that performed the data analysis for this story included Foaad Khosmood, Forbes professor of computer engineering at Cal Poly San Luis Obispo; Thomas Gerrity, data scientist and product manager for Digital Democracy; and Zhi He, a Cal Poly student research fellow.

CalMatters.org is a nonprofit, nonpartisan media venture explaining California policies and politics.