One of the oddities of the Hawaii Legislature is that bills can be introduced without identifying who or where they came from.

While it’s clear most of the time that legislation is being proposed by legislators, the governor, various caucuses and agencies, there are some measures that have no clear origin.

The “by request” practice, as it is known, raises questions about two words that are often used when talking about the Legislature: transparency and accountability. The Foley commission on government reform considered recommending that the Legislature change the “BR” process but ultimately chose not to.

Bills can only be introduced by legislators, and the Senate president and House speaker typically introduce the bulk of legislation on behalf of the governor and other official agencies and organizations. The measures, as stated on the status page of the bills, are officially “Introduced by request of another party.”

The state budget bill, House Bill 300, is a prominent example. Speaker Scott Saiki introduced that bill along with hundreds of others that came from the Green administration, along with others introduced courtesy of Senate President Ron Kouchi.

But those bills make clear who and where they are coming from and are typically part of a package of bills. Of the 274 bills that made it out of the 2023 Legislature and to the governor’s desk, 82 were introduced by request.

Every session, however, including the recently concluded 2023 term, often includes by-request bills that do not actually identify the originator, although they do include the name of the legislator that introduced the bill on their behalf.

This year five such “BR” bills passed, including one that allows businesses with liquor licenses who serve meals to sell unopened beer, wine and prepackaged cocktails with food for pick up, delivery or take out. House Bill 16 is now law.

It was supported by Retail Merchants of Hawaii, the Maui Chamber of Commerce and a half dozen local breweries,

The bill’s introducer, Big Island Rep. Chris Todd, said he was contacted by a member of the Hawaii County Department of Liquor Control in 2017 not long after Todd replaced the late Clift Tsuji. Todd described the commissioner as “a well known Hilo guy” who was trying to clean up liquor license regulations.

Todd did not identify the individual by name, explaining, “This is really an amalgam of people connected to the liquor commission but not one individual.” He said that, over the years, he has introduced similar bills, which Todd described as “clean up bills” regarding regulations.

Todd’s bills include House Bill 137, a measure passed in 2022 that is now law. It pertains to liquor licensing, tax law and investigations, and its supporters included the Liquor Commission of the City and County of Honolulu but also Beer Lab HI and the Hawaiian Craft Brewers Guild. HB 137 was also introduced by request without identifying the party.

There doesn’t appear to be anything nefarious about Todd’s bills. His most recent campaign finance disclosures, for instance, do not show him receiving money from supporters of the liquor license bills.

And there appear to be very good reasons for letting licensees that deliver or provide takeout meals to also provide unopened alcoholic beverages. In a committee report on HB 16, Sen. Jarrett Keohokalole noted that consumer purchasing trends changed significantly because of the Covid-19 pandemic.

“Although these measures were implemented to support local businesses during the pandemic, takeout meals and curbside pickup have become permanent customer demands,” he wrote. “Your Committee also finds that the county liquor commissions and liquor control adjudication boards did not experience an increase of complaints or compliance problems as a result of these pandemic-related policies.”

Still, Todd acknowledges there is room to improve the by-request process to allow for greater transparency.

“It would be a pretty easy fix, given that we already identify whether bills are coming from the administration or the counties or judiciary,” he said. “I think it’s a pretty reasonable.”

Concerns Raised This Year

Hawaii’s unnamed “by request” habit seems to be an outlier. Spokespersons for both the California State Assembly and California State Senate said their chambers do not have a similar practice in place.

The same goes for the Senate and the House of Representatives in Washington state. Spokespersons for the House’s Office of the chief Clerk and the Office of the Secretary of the Senate said that all bills have to be made by request of the governor or other agencies and have a legislative member’s name attached.

In its interim report in March 2022, the Foley commission discussed by-request bills and raised the idea that Senate and House rules could be amended to require disclosure “of the individual or entity.” It’s widely known, for example, that lobbyists often help in the writing of legislation.

The commission heard from Rep. Mark Nakashima, a Democrat who “expressed caution” on the idea of indicating on the actual bill itself who may have requested the legislator to introduce a bill “as legislators often introduce bills that they may not totally support, and the ‘by request’ is a signal that the submittal is a favor.”

Privately, former and current legislators say they are often pressured by constituents to introduce bills — especially ones they do not agree with.

While Nakashima said he did not employ the BR practice, he said people can usually tell who requested a bill by looking at the supporting testimony. But he also stated that if disclosure were required “he didn’t think this would be a problem” and that he honors requests from colleagues and the public to introduce a bill “whenever feasible.”

And Rep. Gene Ward, a Republican, told the commission that bills introduced by request “should note who is requesting the legislation.”

In the end the Foley commission did not make a recommendation on by-request bills, though retired Judge Dan Foley, the commission’s chair, indicated he was for “either eliminating the option to introduce a measure by request or requiring the name of the requestor.”

The influence of lobbyists remains a concern, however. To that end, the Legislature did approve this year, and Gov. Josh Green signed into law, House Bill 137. Introduced as part of the Hawaii State Ethics Commission package, it will require beginning in 2025 that lobbyists provide more detail about their lobbying interests in their expenditure reports, including bill numbers along with what position the lobbyist took.

Well-Intentioned Bills

Besides the liquor license bills, there were four other unnamed by-request bills this year — two from Senate President Ron Kouchi and two from Sen. Joy San Buenaventura.

Kouchi did not respond to requests for comment.

Matthew Prellberg, the Senate’s director of communications, said one of the measures, Senate Bill 487, came from the Legislative Reference Bureau, which he said routinely asks to amend or repeal provisions of the Hawaii Revised Statutes or the Session Laws of Hawaii to correct errors and clarify language. The committee reports for SB 487 explain that the legislation was indeed prepared and submitted by the LRB.

The other nameless by-request bill from Kouchi, Senate Bill 1468, authorizes professional land surveyors to enter any private property to perform land surveying, shielding them from prosecution under criminal trespass laws. The bill, which awaits action from Green, was supported by the Board of Professional Engineers, Architects, Surveyors, and Landscape Architects, the Department of Design and Construction of the City and County of Honolulu, the Hawaii Association of Realtors, Hawaii Land Surveyors Association and Akamai Land Surveying.

“This measure balances a surveyor’s important task of completing surveys against a landowner’s private property rights by establishing a mechanism for the land surveyor and landowner to negotiate a mutually agreed upon time and date for a survey, if required,” according to a committee report.

The bill received little opposition, but Deputy Attorney General Christopher J.I. Leong warned that an early version of the legislation might conflict with a recent U.S. Supreme Court decision suggesting “that these laws may be subject to challenge as a governmental taking of property.” Lawmakers heeded Leong’s advice to include language to provide notice to private landowners and adjoining property owner.

The Hawaii Realtors Political Action Committee donated $1,000 to Kouchi in the last election cycle, but the PAC also donates frequently to many other lawmakers.

San Buenaventura’s two BR measures were widely supported.

Senate Bill 318 establishes a pilot program to determine whether it’s feasible for the state Department of Health to implement a co-management system of care to support individuals with fetal alcohol spectrum disorders. Supporters included the State Council on Developmental Disabilities, the Hawaii Substance Abuse Coalition, the Hawaii Disability Rights Center and the Hawaii Fetal Alcohol Spectrum Disorders Action Group.

San Buenaventura said she was approached by some of the supporters to introduce the bill, a topic that she said she knew little about. The by-request process, she said, helped her do her job better because she was able to learn from experts how necessary it was to address fetal alcohol spectrum disorders.

The other bill, Senate Bill 313, will cut the number of members on the State Rehabilitation Council from 25 to 15, helping it establish a quorum and conduct business without regard to vacancies. The Department of Human Services, the Department of Health and the Hawaii State Rehabilitation Council backed the bill, and San Buenaventura credits the rehab council for raising the idea with her office.

Because the senator chairs the Senate Health and Human Services Committee, she is the obvious contact for proposing subject area bills. She said she welcomes the expert input because there is little time to fully understand complex issues.

“We have a very short session, and we cram all of this stuff from December to January,” she said about the bill drafting process that proceeds sessions.