Having a government that works for the people and operates in a manner that is transparent and accountable – is a worthy goal that cuts across ideological lines.

Thus we must celebrate the Hawaii Supreme Courts’ recent decision on the legislative practice known as “gut and replace.”

Common Cause and the League of Women Voters should be commended for taking this issue to court and persevering. As a result, the message to the legislature is loud and clear: “Gutting” or remove the contents of a bill that has gone through 3/4 of the legislative process (and multiple public hearings) and “replacing” the contents of that bill with proposed changes to the law unrelated to the original bill, thus bypassing the legally required public review process – is unacceptable and unconstitutional.

While the Hawaii Supreme Court ruled only on one specific legislative application of this practice, the legislature has clearly been put on notice.

Note: The original version of this blog piece stated that the court decision would “eliminate” the practice of gut and replace. This is incorrect since the court decision only applied to one specific situation. However, at the minimum, it should greatly inhibit its use in the future. IMHO

We must celebrate this major victory for transparency and accountability, but we must also continue pushing to eliminate a long list of legislative practices that have both gutted and corrupted the lawmaking process here in Hawaii.

There are four main remaining “process” obstacles to legislative accountability and one sweeping solution.

#1) The vast majority of bills introduced by our elected members of the State House and Senate are killed, without ever receiving even a single public hearing. Legislative rules in Hawaii allow the Chair of a committee to unilaterally choose not to hear any bill referred to their committee.

This holds true even if the bill had successfully passed through numerous previous committees in both the House and the Senate. Any subsequent committee Chair may simply refuse to hold a hearing – thus killing the bill without any explanation.

#2) Bills that actually do receive a hearing and are not supported by the Chair, are normally killed without any member of that committee actually voting to kill them. Consequently, no member is ever “on record” voting against any bill. If the Chair chooses not to pass a measure, they will simply “defer” the measure and no vote is taken. This practice is also permitted under the legislative rules.

#3) It is common practice also that when committee hearings are conducted, the Chair at the conclusion of the hearing will verbally announce various amendments to the bill, and a vote will be taken to approve those amendments – even though nothing in writing may have been provided to committee members (not to mention to the public).

I am told that in the “old days”, the Chair was required to provide committee members and the public with any proposed amendments in advance so they would have time to review and perhaps comment or offer further amendments prior to the vote.

#4) Far too many decisions are made in the back rooms, away from the sunshine and public oversight.

The Hawaii State Constitution Article III – Section 12 states:
“Every meeting of a committee in either house or of a committee comprised of a member or members of both houses held for the purpose of making a decision on matters referred to the committee shall be open to the public.”

It’s common practice for committee members, certainly the Chair’s, to meet in private “for the purpose of making a decision on matters referred to the committee”. They meet in private, negotiate in private, and agree on the outcomes in private, emerging from the closed private meetings to announce the outcome and then formally vote at the public meeting.

The solution: Change the legislative rules. Adopt a legislative budget and schedule to allow for the extra time and the additional staffing needed to do it right. The rules can be changed at any time by a majority of the members.

My hope is that in 2022 we elect such a majority.