Gut and Replace: How good bills turn bad
Mauka to Makai / Reporter Matthew Kain owed no apology to Hawaii State Senator Carol Fukunaga for reporting in the Weekly (“Hawaii State Legislature E-lection,” Aug. 12) that, “Fukunaga was among the introducers of SB755.”
SB755, as passed by the State House, sought numerous exemptions from laws that protect Hawaii’s fragile environment, and was passed over loud public objection. It is true that the bill “morphed” while in the House, but that’s the way the Legislature operates. The official record shows that Sen. Fukunaga is indeed one of the introducers of this bill.
Never mind that, as Fukunaga wrote in a letter to the editor [“Billʻs backstory, Sept. 12], she would not even have recognized it after the House worked it over. The record also shows that the bill passed the constitutionally required three readings in the House. Had the House and Senate convened a conference committee, it could have passed into law.
Fortunately, that did not happen.
I suggest that the public record is extensively manipulated and is often false. More important, should a law be challenged in court, I wonder if a judge would agree that language that appeared magically mid-session and has not been heard by prior committees, nor by legislators on the floor, is indeed valid.
Without the fiction of this public record, SB755 could not become law. So if the Legislature stands by its process, then Sen. Fukunaga is stuck as one of the introducers of this bill.
SB755 is but one example of the practice called “gut and replace,” which is employed to push through bills that the leadership wants to move forward in disregard of the customary legislative process. Without creating fictional public records, these bills could not become law.
In fact, the new language, unrelated in any way to the bill that Sen. Fukunaga introduced, seems to have received only one reading on the floor, on April 10, not the three that are required by the constitution. That reading is indicated as the “third reading” on the record.
Legislators, of course, do not agree with my reasoning. Both houses hold that as long as the title is the same, it doesn’t matter what the content of a bill is, so long as it relates somehow to that title.
But Article III of the Hawaii State Constitution stipulates:
“Section 14. No law shall be passed except by bill. Each law shall embrace but one subject, which shall be expressed in its title….
“Section 15. No bill shall become law unless it shall pass three readings in each house on separate days.”
A “gut and replace” goes beyond a minor amendment–it changes the subject of a bill entirely while retaining the title as a cover-up.
So what legislators approved on first reading is not the bill that they approved on third reading. Nor, of course, is the final language anything like what was introduced or might have been heard in the subject-matter committees.
The Senate, for its part, did away entirely with “final reading” on the floor during its closing session this year. A “reading” usually allows senators the opportunity to debate each bill. This year, the Senate President simply called for a vote on a numerical range of bills as “read.” The Constitution does not define “reading,” but I found nothing in it to suggest that a bill could be advanced by waving a magic wand.
Legislators have also used “gut and replace” to kill unwanted legislation and cover up their actions with a false public record. In 2006, for example, SB1061, a bill to prohibit lobbyists from making political contributions while the Legislature is in session, was headed to the House Judiciary Committee.
Rep. Sylvia Luke changed the language of the bill to one proposing a task force to study (and presumably weaken) the state’s Sunshine Law. When the new language became available (with less than the required 48-hour notice), of course there was strong objection,and SB1061 was conveniently defeated. The record covers up that it was not the original bill that died.
Unfortunately, the Legislature’s rules allow “Capitol crimes” such as the SB1061 caper or the replacement, this session, of the good and worthwhile language that Sen. Fukunaga introduced with an unrelated and strongly unpopular measure.
So with great respect for Sen. Fukunaga, I suggest that the Senate can’t have it both ways. The public record is either true or false. Until legislators stand up and object, they must accept the consequences for the way business is conducted on their watch.