from the Ledge – Red Flags, Code, and Words that Matter

There were several times during my service in the Hawaii State Senate, where I came very close to supporting proposed legislative measures (bills), that was in direct opposition to my core values.  Some of these instances were a result of political pressure from colleagues (other Senators) and stakeholders (those who benefit from the proposed legislation).  But most instances of where I almost voted wrong, were those involving bills that were drafted in a manner that misconstrued the underlying intent of the bill.  

To say that in these situations the bill sponsors (other legislators serving stakeholders who will benefit) were “less than forthright” in presenting the intent and content of the bill is being overly generous.  It is much more accurate to say the bill language was most likely driven by an intent to deceive. 

The reality of the law-making process however is that much, if not a majority of new legislative initiatives, are in essence introduced by “special interest groups – stakeholders – advocacy organizations”. While the name of the special interest group will not be found anywhere on the bill itself, the bill’s content most often originates directly from the special interest entity.  

This reality is not unique to Hawaii, nor unique to only state government. The same is true in county and federal governments and in political jurisdictions everywhere. 

These groups whether driven by business interests, professional licensing issues, environmental protection, labor, social justice advocates, or whomever, are constantly encouraging legislation that benefits the particular interest they support.  Each year they encourage legislators to introduce and support bills that create new laws and/or amend existing ones.  

Often they provide the legislator with an actual “proposed bill draft” that contains the exact language they prefer.  These drafts originate frequently from a bill or a law that was passed or considered in another state or jurisdiction, but it’s also not unusual for the measures to be drafted by private attorneys employed by the interest group who will benefit.

In my opinion, this is not an inherently bad thing.  The special interest group often knows and understands the subject matter far better than the individual legislator, who is, after all, responsible for voting on hundreds of issues covering a wide range of interests.  

The problem, or at least one of the problems, stems from the original drafter’s choice of words which far too often are simply carried over to the official bill that is ultimately introduced.

An advocate will always frame an issue in the absolute most favorable manner, a practice that can easily be pushed to transcend ethics and fair play, essentially being deceitful.

One example I remember clearly was a bill introduced to “Bring the State of Hawaii into alignment with Federal Clean Water Standards”. This sounds on its surface to be a reasonable proposal, almost like “housekeeping” (remember this word – it should always raise red flags).  

Yes, this measure sounds reasonable, until you find out on your own (because nowhere in the bill does it say this), that Hawaii’s existing clean water standards were/are actually stronger than the federal standards.  Supporting this measure would translate to supporting the weakening of Hawaii’s existing clean water standards. If passed (it was not), this measure would have saved millions of dollars for those required to utilize and manage sewage treatment plants, and our nearshore waters would have in turn, become increasingly contaminated.

Important side note: In most cases, federal law and rules represent a “floor, not a ceiling”.  State governments are in general, allowed to pass laws that are stronger than the federal government, but not weaker.  The most prominent anomaly to this of course is the medical cannabis issue where many states have legalized activity that the federal government considers illegal.

Another egregious example is a bill that once came before me proposing to “Level the playing field and amend the tax law to equalize the tax treatment of certain types of private trusts and foundations so that all are treated fairly”. (paraphrasing from memory)

Who can argue with “leveling the playing field and equal and fair”?  The problem at the end of the day for this measure is that it primarily benefited one very large private trust that was coincidentally (read – sarcasm) preparing to dissolve and disperse its assets to family members. Passage of this bill would have transferred to this one particular trust many millions of dollars that otherwise would have gone to schools, environmental protection, and other public services.  Nowhere within this bill did it indicate who specifically would benefit. The measure died a quick and quiet death in caucus once the true nature of its intent was revealed by one particular sharp-eyed Senator.

A third and perhaps most dangerous example is the use of the words and phrases, “streamline the process” and “fast track” and “expedite”.  This is most often used in the context of land use and real estate development and translates to “weaken environmental protections, make less transparent and allow rich landowners and developers to become more rich, more faster”.  Bills that contain these words are often accompanied by a “purpose clause” in the bill which trots out the need for affordable housing and jobs as justification for the elimination of public protections and accountability.   

It is a given that every single “affordable housing forum” that is held to figure out and “chart a path to generate more affordable housing” will conclude with a statement on the need to “streamline and expedite the process”.  Rarely if ever will the conclusion be to properly staff the agencies responsible for processing the permits and even more rarely will the actual building of truly affordable housing be a requirement for the lessening of public protections and oversight.  

There are many, many other real-life examples I could name, but for now, I think it suffices to say words matter. Legislators and citizen advocates alike will be well served by knowing some of the more common buzz words and catchphrases to watch out for.

“Housekeeping” is a phrase used to imply that there is nothing of substance being changed in a bill but it is simply “cleaning it up”, perhaps making it “gender-neutral” or “bringing it into alignment with other statutes”.  In many cases, these phrases are intended to make a busy legislator look away or perhaps only skim through the review of the bill. On the contrary, these words should trigger a legislator to look even closer at a measure and to not discount it as unimportant.  The placement of a comma, or the changing of any word really, has the potential to fundamentally change the meaning of the law.

I would be remiss if I did not include before I conclude, the phrase “public/private partnership” which means that a public asset or responsibility is essentially sold to a for-profit business.  Yes, the private sector can and does operate more “efficiently” in many areas than government, however many if not most “public services” are not intended to be profitable (think parks, lifeguards, police, fire departments and yes even public transportation), which is why they are called “public services” and paid for and administered by the government. There is a place for public/private partnerships but history will show that this is an area of great abuse. This buzzword should not bring comfort to lawmakers who believe in putting the public interest ahead of corporate profits.

Only legislators can introduce bills and everyone – the governor, for-profit and nonprofit and everyday citizens must go through the same process. Some bills can be purposefully vague, others are by nature of the subject matter simply confusing. The volume of bills and frenetic pace of the session only further exacerbates the likelihood of error and misjudgment. Because legislators aren’t subject-matter experts in all subjects they rely on bill advocates or departments to explain the measures. 

For elected officials and citizen advocates alike, a little bit of skepticism and a lot of critical thinking are essential attributes. And yes, watching with vigilance the words contained within all measures, is simply the responsible thing to do.

About garyhooser

This blog represents my thoughts as an individual person and does not represent the official position of any organization I may be affiliated with. I presently serve as volunteer President of the Hawaii Alliance for Progressive Action (H.A.P.A.) I am the former Vice-Chair of the Democratic Party of Hawaii. In another past life, I was an elected member of the Kauai County Council, a Hawaii State Senator, and Majority Leader, and the Director of Environmental Quality Control for the State of Hawaii - in an even earlier incarnation I was an entrepreneur and small business owner. Yes, I am one of the luckiest guys on the planet. Please visit my website AND sign up for my newsletter (unlike any email newsletter you have ever gotten, of that I am sure) - “Come to the edge.” “We can’t. We’re afraid.” “Come to the edge.” “We can’t. We will fall!” “Come to the edge.” And they came. And he pushed them. And they flew. - Christopher Logue (b.1926)
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