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State House Republicans are worried about three capital letters that went missing last week from a bill that could increase taxes for virtually everyone in Hawaii.
The change seemed innocuous enough: House Bill 1240’s committee referral to “EDN” had simply been removed Friday.
But it spoke volumes to the Minority Caucus. The change meant the bill is bypassing the Education Committee and being fast-tracked to the Finance Committee, its only hurdle before a final vote of the full House.
The legislation would raise the General Excise Tax by 0.25 percent to directly fund the Department of Education and permit the counties to levy a similar surcharge. It would also let Honolulu continue collecting a GET surcharge beyond 2022, the current sunset date, so the county can afford its $5.2 billion rail project, now facing a shortfall of up to $910 million.
The seven GOP members in the House oppose any broad-based tax increase. So when they noticed this bill switched to a single committee referral, alarms sounded.
“It startled me,” Rep. Cynthia Thielen, the longest-serving Republican in the House, told Civil Beat. “That means they’re serious. They want to push this through.”
“I have no doubt there are times that the referrals’ implicit intent is to make it so cumbersome that it can’t meet all the deadlines.” — Rep. Roy Takumi
Referral decisions are made for myriad reasons. But understanding this wonky aspect of how laws are made can improve advocacy, pinpoint obstacles and even provide a blurry glimpse into the crystal ball.
At the beginning of each session, a handful of legislative leaders in each chamber decide which committees will hear hundreds of bills. The referrals can spell death for one bill and breathe life into another.
“It is an inexact science,” Rep. Roy Takumi said Tuesday. “I have no doubt there are times that the referrals’ implicit intent is to make it so cumbersome that it can’t meet all the deadlines. But it’s difficult to make a broad, sweeping generalization.”
Takumi introduced HB 1240 with Rep. Karl Rhoads. It’s just one of many vehicles this session to extend the GET.
As chair of the Education Committee, Takumi said it was his call to ask leadership to remove the bill’s referral there. He wanted it to go straight to Finance because he figured if he held a hearing on it, 90 percent of the testimony would be about the rail project instead of the education component.
While sending a bill to just one committee can aid passage, referrals to multiple-committees can mean the opposite. That could mean trouble for everything from election reform and medical marijuana dispensaries to energy initiatives and buffer zones around fields where genetically engineered seed companies spray pesticides.
The Senate has done away with triple-referrals, but the House remains fond of them.
Part of that is the Senate being smaller — it has 25 members compared to 51 in the House. With fewer members on each committee, it’s easier for the Senate to hold hearings jointly. Some bills on the Senate side may go to four or five committees, but it will be done in no more than two hearings by having them held together.
Maui County, for instance, wants the Legislature to pass legislation related to industrial hemp research.
On the Senate side, the bill was referred to the Agriculture, Higher Education and Public Safety committees first, followed by another joint referral before the judiciary and money committees.
The legislation also got a double-referral on the House side, but only before the Agriculture and Finance committees.
There are many ways to read those two sets of referrals. It could be the Senate wants a more thorough vetting, or it just doesn’t like the bill. The simpler House referrals could mean Speaker Joe Souki, who represents part of Maui, wants hemp research to happen. It could be neither. It could be both.
Either way, with no hearings scheduled yet in either chamber, it looks like hemp research is dead this session, even though it just started Jan. 21 and doesn’t end until May 7.
“We don’t want to shortchange a committee chair who has a stake in the bill.” — Majority Leader Scott Saiki
The deadlines alone present major challenges, but it’s not impossible for bills with multiple-referrals to pass.
House leadership — which includes Souki, Vice Speaker John Mizuno, Majority Leader Scott Saiki and Majority Floor Leader Cindy Evans — has referred roughly 335 bills to three or more committees. That’s 21 percent of all the bills introduced in the House this session.
“For the past couple of years, we’ve tried to minimize the number of bills with triple-referrals,” Saiki said. “There are some bills though that implicate different subject-matter areas, making it kind of unavoidable. We also don’t want to shortchange a committee chair who has a stake in the bill.”
Out of all those triple-referral bills, almost one-third haven’t had a single hearing yet, while many more were frantically being heard in committees Tuesday to get them out in time.
All bills referred to three or more committees must be in their second-to-last committee by Thursday. All bills must be in their final committee by Feb. 20, which is called “first lateral.”
“When you have three separate committees, that tightens the amount of available hearing dates you can schedule bills,” Takumi said.
On the Senate side, a committee comprised of Sens. Les Ihara, J. Kalani English and Josh Green decides where bills go after the Senate Majority Attorneys Office takes a first pass at recommendations on where to send each one.
“We have the committee now because years back there was a perception that referrals were not based on jurisdiction but had other considerations at play,” said Ihara, who’s served on the referral committee for eight of the past 10 years.
“The committee was set up to gain a level of trust that the referrals were made based on the rules,” he said.
Both chambers have processes in which committee chairs can appeal referral decisions. Ultimately, it’s the House speaker and Senate president who have final say in disputes.
“Years back there was a perception that referrals were not based on jurisdiction but had other considerations at play.” — Sen. Les Ihara
Senate President Donna Mercado Kim said decision-making in the referral process is done judiciously, based on Senate rules and precedence. For instance, if a tobacco bill went before these two committees in the past, it’ll go there again.
“There’s no way you can really abuse this system,” Sen. Will Espero said.
Plus, he said, there are so many other ways to kill a bill that the referral process doesn’t have to be used.
Still, Espero reads meaning into the number of referrals that a bill has. “Four would be a kiss of death,” he said.There was only one bill this session with a quadruple-referral — and it’s dead already despite having support from 23 representatives.
House Bill 1367 proposed transferring title to certain parcels of land from the University of Hawaii to the Hawaii Housing Finance and Development Corporation for development of affordable housing and income generation for University of Hawaii-West Oahu.
The Higher Education Committee deferred the bill indefinitely last week, preventing it from reaching any of the next three committees it was referred to.
Strategy is key. The more “sophisticated” lawmakers will carefully draft a bill to avoid having it referred to certain committees, Ihara said.
Making a bill dealing with genetically modified organisms just about health, for instance, can keep other committees from having an opportunity to kill it — assuming nothing fishy happens during the referral process.
Last session when GMOs were dominating public debate at the Capitol, all eyes were on Sen. Clarence Nishihara, then-chair of the Agriculture Committee and friend of seed companies like Monsanto and Syngenta.
He faced intense pressure to hear bills related to everything from GMO labeling and pesticide spraying to county jurisdiction over laws limiting what types of farming are allowed. They were heard, but were then deferred at his recommendation.
Critics found fault in referring the bills to his committee, where they were sure to die.