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Opponents of holding a constitutional convention are right about one thing: There’s nothing wrong with state government that legislators can’t fix.
But they won’t.
They could place much tighter restrictions on the activities of lobbyists, but they’re often the beneficiaries of those activities, so they won’t.
They could end their exclusive exemption from the Sunshine Law that requires more open government at all other levels, but they’re comfortable doing the people’s business in private, so they won’t.
They could require that general election candidates report their campaign donors and expenditures while people are still deciding who to vote for, but the current system keeps leading to their re-election, so … you know.
Do we really want to wait another 10 years for another shot at much-needed reforms when we know in all likelihood we’re not going to get them without a constitutional convention?
It’s not that the aforementioned reforms and many others aren’t proposed with regularity at the Capitol. But those bills tend to come from the powerless — Republicans or Democrats who are on the outs with Senate and House leadership.
They die quickly, usually without a hearing, much less a vote.
A lot of gimmicks can be employed to keep the lights dim in the Capitol. Good-government groups filed a lawsuit just last month to go after one of those tricks.
Gut-and-replace is the all-too-common legislative custom of removing a bill’s content and replacing it with new legislation, often with little or no relation to the original measure’s purpose — and with little or no opportunity for the public to comment on the new bill.
Calling the practice “abhorrent to basic principles of democracy,” Common Cause of Hawaii and the League of Women Voters sued the state to challenge one bill created through the gut-and-replace process.
The original version of Senate Bill 2858 called for beefing up the Department of Public Safety’s annual reports to the Legislature by requiring performance indicators to track progress in areas such as recidivism, drug rehabilitation and demographics. It cleared the Senate, but in the bill’s first House hearing, the Public Safety Committee deleted its entire contents and inserted new language regarding disaster preparedness. There was nothing nefarious about the new bill, but the tactic generated frustration among people tracking both issues.
The plaintiffs are asking the court to invalidate the bill and serve notice to legislators that the practice is suspect. It’s a laudable action, but these organizations can’t afford the number of lawsuits it would take to pick off gut-and-replace bills one at a time.
A better solution would be a constitutional amendment requiring sponsors of legislation to write bill titles that are much more specific to the content. The trick right now is to start each legislative session with lots of vaguely worded bill titles (the measure that prompted the suit was titled “Relating To Public Safety”), which can then be molded into entirely different measures late in the session and behind closed doors.
Legislative leaders will never agree to that, but ConCon delegates might. And their proposed constitutional amendments would go straight to the voters, who approved all 34 amendments proposed at the last ConCon in 1978.
It’s not practical to fix all our problems with constitutional amendments. Often a new or changed statute would suffice. That’s why a ConCon would be a huge breakthrough if it only proposed one amendment: that the people of Hawaii be given the right to go over the Legislature’s head when necessary with a statewide citizen initiative process.
Every other western state already offers this option for gathering petition signatures and taking proposals directly to voters.
The mere existence of a statewide citizen initiative process could dramatically alter the dynamic at the Capitol, where the lawmaking is fueled by behind-the-scenes power plays more than open negotiations seeking solutions to our myriad problems.
Things change when you’re not the only game in town.
Whether the tool was a constitutional amendment or a citizen initiative, here are a couple of other areas where ConCon delegates could help Hawaii in ways the Legislature won’t:
Lobbyist reform: Almost every legislative session, numerous bills from good government groups or the State Ethics Commission are proposed to tighten restrictions on lobbyists who spend millions of dollars to influence lawmaking at the Capitol. Consider some commonsense examples from the just the last session:
• House Bill 524 and Senate Bill 626 would have required lobbyists and their clients to make monthly financial disclosures whenever the Legislature is in session. It would also have required disclosures regarding lobbying events, contractual relationships with legislators and campaign contributions, and required certain state employees to disclose contractual relationships with lobbyists and their clients.
• Senate Bill 813 would have prohibited campaign contributions from lobbyists to legislators during sessions. It also would have prohibited the common practice of legislators holding fundraisers during sessions.
• House Bill 1990 would have prohibited the appointment of former lobbyists to government positions that are directly responsible for approval, authorization, or oversight of matters in which they participated as a lobbyist.
These proposals and many others died quietly. It’s the same story every session.
Public records and open meetings: Hawaii is the worst state in the nation when it comes to timely decisions on disputes over open records and open meetings, according to a study released earlier this year by The Civil Beat Law Center for the Public Interest.
When people believe they are being improperly denied public records or notice of public meetings, they can complain to the Office of Information Practices. But the study found that the average time taken by the office to resolve those complaints has quadrupled in recent years and “the public can now expect a delay of two to three years or more for OIP to issue a decision.”
The OIP responded to the study by pointing out that it issues informal opinions on disputes much more quickly, but those are nonbinding on the agency accused of improperly withholding information.
Senate Bill 3092 would have required the OIP to resolve all cases within six months, something that several other states already do.
Unfortunately, but predictably, it died in the Legislature this year.
Hawaii’s requirements for open government meetings and access to public records are contained in the Sunshine Law. The rules about open meetings apply to all levels of government except the Legislature.
It would no doubt take a constitutional convention to require legislators to follow the same rules they’ve set for everyone else.
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The members of Civil Beat’s editorial board are Pierre Omidyar, Patti Epler, Jim Simon, Richard Wiens, Chad Blair, Jessica Terrell and Landess Kearns. Opinions expressed by the editorial board reflect the group’s consensus view. Chad Blair, the Politics and Opinion Editor, can be reached at firstname.lastname@example.org.