Get Rid Of ‘Gut And Replace’ Legislating
Making radical changes to bills at the Hawaii Legislature denies the public its essential role in the legislative process.
The words used by two good-government groups to describe the Hawaii Legislature鈥檚 gut-and-replace approach to legislating are damning:
It is 鈥渁bhorrent to basic principles of democracy.鈥 It鈥檚 鈥渉odgepodge鈥 and 鈥渓ogrolling鈥 legislation. It鈥檚 鈥渄eceptive鈥 and it 鈥渞adically鈥 changes bills.
and the 聽sued the state last week over gut and replace 鈥 the custom of removing a bill鈥檚 content and replacing it with new legislation often with little or no relation to the original measure鈥檚 purpose.
Specifically, they are asking the court to void a law that was based on the stealthily replaced bill, ostensibly making the Legislature think twice before it guts and replaces.
We think the court should go a step further and use this case to set a precedent that follows the Hawaii Constitution on the reading of bills, thus effectively doing away with gut and replace.
Legislators say gut and replace is a way to keep ideas alive at the Legislature, which annually holds a 60-day session from mid-January to early May. Should promising legislation die early, sometimes at the whim of a single committee chair or leader, it can later be revived.
It鈥檚 not an uncommon practice. In Oregon it鈥檚 called 鈥 while in California it鈥檚 called for example.
But that doesn’t mean it’s right. And in Hawaii, gut and replace may well violate the state聽 Constitution. The lawsuit cites , sections 14 and 15. The latter states clearly, 鈥淣o bill shall become law unless it shall pass three readings in each house on separate days.鈥
As the lawsuit demonstrates, such was not the case in the 2018 session that began as a requirement to improve the tracking of metrics in the state鈥檚 criminal justice system. Among other things, the data was to be used to evaluate efforts to improve offender re-entry and rehabilitation.
But the bill soon became something requiring the state to consider hurricane-resistant criteria when designing and constructing new public schools. And the bill did not meet the constitutional requirement of three full hearings.
As Civil Beat reported, 鈥淎t no point was there an opportunity for the public to testify when senators heard the measure.鈥
That鈥檚 wrong, no matter how well intended the legislation may be. And gut and replace happens a lot, including with other bills just this past session.
Fortunately, this is not a difficult fix. The 1st Circuit Court can void the hurricane shelter law, sending a message to the Legislature to stop gutting and replacing.
There is a proper way to deal with legislation rather than taking the shortcut of gut and replace.
If an issue is so important, it is incumbent upon legislators to ensure that it go through the proper process. There is plenty of time, both during session and in the interim.
If something comes up during the legislative session where emergency action is warranted, the Legislature has considerable leeway in drawing up the necessary legislation and giving it a full hearing.
And if that isn’t enough, there’s always the option of a special session, as was done with the Honolulu rail tax in 2017 and may still be done this year with natural disaster funding as a result of the recent storms and lava flows.
The problem is gut and replace has become too easy. It’s the lazy way out of what should be thoughtful consideration of important public business — with full public involvement. The court should take this opportunity to deliver a gut punch to gut and replace.
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