Janet Mason’s head was spinning Tuesday.

The chair of the legislative committee for the League of Women Voters tracks and testifies on dozens of bills as they move through the Hawaii Legislature on topics like government transparency, campaign finance reform, all-mail voting and how lawmakers want to spend taxpayer money.

But in all her years at the Capitol, she’s never seen so many dramatic changes made in bills with so little advance notice, especially this late in the legislative process. The current session, which ends May 3, is about to enter the period where House and Senate lawmakers negotiate the final versions of bills that have already passed both chambers.

“It’s crazy,” Mason said.

Chair Donovan Delacruz Chair Ways and Means committee chats with Vice Chair Sen Gilbert Keith Agaran in room 211 today.
Sen. Donovan Dela Cruz, left, chair of the Ways and Means Committee, chats with his vice chair, Sen. Gil Keith-Agaran, at a hearing earlier this session. Dela Cruz and other top lawmakers have been dramatically altering bills with little public notice. Cory Lum/Civil Beat

Other good-government advocates such as Common Cause Executive Director Corie Tanida and even some lawmakers are also concerned about the trend.

“It’s not just problematic to the public but also to legislators,” Tanida said. “Are they getting the opportunity to fully digest all these bills? They’re not simple bills. And if this is affecting the community, the community needs to have input from the outset.”

Janet Mason 

Common Cause, the League of Women Voters and other nonprofits, such as Hawaii’s Thousand Friends and Americans for Democratic Action, have called on the Legislature for years to end “misleading practices which keep the public in the dark,” as their 2013 petition to the House and Senate put it.

There’s the gut-and-replace tactic, which involves removing the entire contents of a bill and inserting the contents of another in its place without any notice. And there are the “Frankenstein” bills that keep the original contents of one bill and add the contents of another that had died earlier in the session.

A common practice this session combines both tactics while giving a couple days’ advance notice. Gut-and-replace 2.0.

It’s at equal turns an improvement, in that it at least offers the public a brief chance to see the bill and comment on it before decision-making, and a setback, because it increasingly supplants the more open regular legislative process.

Finance Committee Chair Sylvia Luke has gutted and replaced bills this session while giving the public only a couple days’ notice of the changes. Nathan Eagle/Civil Beat

On Thursday, the Senate Ways and Means Committee, chaired by Sen. Donovan Dela Cruz, had an agenda featuring at least a dozen such bills — more than Capitol observers could recall ever seeing at one time. Four bills were deleted from that agenda late Wednesday. 

Other committee chairs have also made ample use of this tool. Rep. Sylvia Luke, who chairs the House Finance Committee, gutted a Senate bill from last year that would have expanded the income tax credit for low-income renters and replaced it last month with legislation to give the neighbor island counties more hotel tax revenue.

It’s a tactic allowed under the rules that each chamber sets for itself, and has even been used on some of the biggest issues such as managing telescope activities atop Mauna Kea and protecting undeveloped land.

“It’s concerning because I think it damages the public faith in the process.” — Sen. Laura Thielen

Dela Cruz referred comment on the practice to the Ways and Means Committee clerk, Dane Wicker.

“It’s a double-edged sword,” Wicker said. “Everyone has priorities. As you move through the legislative session, how do you keep the concept or discussion alive till the end?”

Bills may have a lot of momentum in one chamber but then fizzle out when they cross to the other. Lawmakers can inject life into the measure by gutting a different bill and replacing it with the contents of a dead measure.

That’s particularly important at this point in the legislative session. Friday marks the Legislature’s internal deadline for all bills to be moved out of their final committees and headed to votes by the full House or Senate.

From there, it’s on to the joint conference committee phase in which members appointed from each chamber hash out the differences. There’s no opportunity for the public to testify during that process.

When Bills Change Dramatically

House Bill 2304 initially would have established the Industrial Hemp Special Fund to pay for a pilot program.

It cleared the House on March 1 after going through the Agriculture and Finance committees. Members of the public and department heads testified on it and a few minor changes were made.

The measure initially received no traction after crossing over to the Senate. But on Monday its referral to the Agriculture Committee was dropped and the Ways and Means Committee set a hearing for Thursday on a new draft that has nothing to do with hemp.

Capitol Building 2018.
Nonprofit organizations have called on legislators to end “misleading practices which keep the public in the dark.” Cory Lum/Civil Beat/2018

The draft, only made public when the committee agenda was posted Monday, would appropriate $4.5 million to design and build water systems in east Maui for agriculture and other purposes.

The public and others will have an opportunity to testify in writing or in person at the hearing. But it leaves many people scrambling.

For those who had been tracking the bill when it was about hemp, they now have to change course and try to save that plan through other legislation. And those affected by the new proposal about funding Maui water systems have three days to review the draft and prepare testimony.

If the measure passes the committee and clears the full Senate as expected, the House is left with two options. Accept the bill as is or take it up in conference committee, where many measures die quietly due to lack of agreement over the details.

House Bill 1481, also on Thursday’s agenda, went from forming a working group to study blockchain technology to dismantling the Kakaako community development district and creating an east Kapolei community development district instead.

Senate Bill 2525, which Dela Cruz introduced, would have accomplished this, but it appears stalled in the House Finance Committee. The measure faced opposition from community groups like Kakaako United and only lukewarm support from others.

But instead of letting the proposal die, Dela Cruz had planned to place its contents in the Senate draft of HB 1481. He pulled it from the agenda late Wednesday. 

House Bill 973, another measure that Ways and Means planned to hear a proposed new version of Thursday, was set to go from funding a research and grant technology program to providing $1.5 million to help put on the 30th Festival of Pacific Arts in 2020. This too was pulled at the last minute from Thursday’s agenda.

And the list goes on.

Rusty Scalpel Award

Sen. Laura Thielen said she’s noticed both chambers doing this a lot more this session.

“It’s telling me that the two chambers are far apart on certain issues, and they’re each taking the other’s position and reverting it back to their own,” she said. “There are going to be hot and heavy conference committee issues.”

Senator Laura Thielen HTA questioning during joint senate hearing.
Sen. Laura Thielen said the uptick in gut-and-replace bills suggests the House and Senate are far apart on numerous issues. Cory Lum/Civil Beat

She sees the advance posting of the proposed drafts of bills that will be gutted and replaced as an improvement. But she said it’s still difficult for anyone who’s not a Capitol insider to follow the legislation.

“It’s concerning because I think it damages the public faith in the process,” Thielen said. “When there’s this perception that there are rules but we can have different rules when we want, that’s a frustration. … There’s got to be a better way.”

Mason, who was trying to gear up as fast she could for the newly proposed drafts at the hearings this week, said she finds it discouraging.

“I do think voters want to understand what’s happening to their tax revenues,” she said.

The League of Women Voters and Common Cause have started give out the Rusty Scalpel Award each year for bills that lawmakers changed dramatically without providing the public a chance to participate in the process.

Last year, the award went to a bill that started out changing income tax rates to help poor people but morphed into a plan to give $1 million to the Hawaii Tourism Authority to address homelessness in tourist areas.

“We have many candidates for the award this session,” Mason said. “We may have to give a first, second and third prize.”

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