Two good government organizations filed suit several months ago challenging a classic example of the Legislature’s so-called “gut and replace” maneuver.
The lawsuit filed on behalf of Common Cause and the League of Women Voters of Honolulu alleges SB 2858, passed during the 2018 legislative session, violates several provisions of the Hawaii State Constitution, including one that requires a bill to get three readings in each chamber, on different days, to provide the public with ample opportunity to provide input on the proposed legislation.
The case is pending in Circuit Court. Whatever the legal technicalities that will determine the lawsuit’s outcome, it’s raises an important point—the tricks that can be used to move a bill through the legislative process while, at the same time, shielding it from all but cursory public review.
Hawaii’s legislature is far from alone in this regard.
An investigation by the Kansas City Star newspaper detailed how the same “gut and replace” technique has become an all too common way for that state’s legislature to push through controversial legislation (“How Kansas lawmakers keep you from finding out what they’re doing — until it’s too late”).
The newspaper also points to bills introduced anonymously, which conceal the special interests behind bills the Legislature will consider.
Hawaii requires each bill to bear the name of the legislator or legislators introducing it, but also allows bills to be marked as “By Request”, with no requirement that the requesting individual or organization be identified. The result is another kind of secret influence.
The Wisconsin Center for Investigative Journalism recently had a story detailing how their legislators stuff all kinds of provisions into the state’s budget bill, often anonymously and at the very last minute (“Last-minute surprises and secretive moves hide Wisconsin lawmakers’ actions from public view”).
An investigation by the Wisconsin Center for Investigative Journalism found the Legislature systematically diminishes the voices of the public by:
— Introducing budget amendments at the end of the approval process with no public notice or debate.
— Approving anonymous, last-minute budget motions containing a grab bag of changes, including major policy items that have nothing to do with state spending.
— Changing the scope and impact of a bill after its public hearing has been held, which excludes regular citizens from having meaningful influence on legislation before it is enacted.
Budget bills in our legislature are often stuffed full of provisos, language inserted anonymously (often in conference committee) that places restrictions or limitations on the use of public funds being appropriated. Such provisos often benefit particular interests, often with minimal public discussion.
In any case, I hope that the lawsuit by Common Cause and the League will spur more public debate over legislative techniques that close the public out of the process of lawmaking. That can be as, or more important, than the legal outcome of the case.
