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Editor’s note: Former state Sen. Russell Ruderman, a Big Island small business owner, has been a recent contributor to our opinion section with his Community Voices commentary on politics and the Legislature. With our emphasis this year on government accountability and transparency, ethical leadership and reform, we decided to ask him to become a regular columnist to help readers better understand what goes on at the Legislature, both during session and in the interim. He served in the Senate from 2012 through 2020, where we always found him to be an independent thinker and a champion of issues that didn’t go over so well with his legislative colleagues, like term limits and the citizen’s initiative process. Russell also has an interest in how business and politics intersect — or perhaps collide — and we’re looking forward to his thoughts in that area as well. You can check out his previous pieces here.

As we enter conference committee season at the Legislature, the lack of sunshine principles and public disclosure comes into its clearest focus.

Throughout the session, meaningful public disclosure and involvement appear intermittently. Not so in conference committee, where the process is intentionally obscure and anything goes without explanation. And here control over outcomes is most concentrated in the hands of a very few people.

A few highlights of the regular session in this regard might help set the stage.

House Speaker Scott Saiki decided all by himself that legalization of cannabis would not be on the table this year. He said he needs another year to think about it. No matter that a majority of the Legislature in both chambers wanted its consideration. One person wouldn’t allow a vote or a discussion.

He also appointed himself sole arbiter of whether the Department of Hawaiian Home Lands could build housing for Hawaiians on their own land at Kakaako. The answer, by edict, was “No, they cannot” and Saiki decided the deal they could take or leave, all on his own.

Rep. David Tarnas single-handedly decided that term limits would not get a hearing or a vote, despite this being a primary recommendation of the House-sponsored Commission to Improve Standards of Conduct. He quoted some testimony from an advocate who agreed with his predetermined position; the other side’s testimonies, much more numerous, were not aired.

This is one of the most significant possible reforms. Whether one agrees with it or not, its importance is such that it deserves a hearing, fair consideration, and perhaps to be put before the people in a required statewide vote. But again, one person decides for us all and takes away our voice.

While there are flashes of sunshine during regular session, now comes conference season where the sun never shines. Conference is designed to hammer out differences between the House and Senate versions of bills. One would think that bills which passed all their committee and floor votes will be given fair consideration, and one would think that most such bills should pass. But a very few people are given veto power over almost all bills, in defiance of the principles of representative democracy. There are several ways this happens.

Some bills die right at the start because conferees are not assigned – no explanation needed. There are only 10 days for conference, which is a cramped schedule at best. Thus advance notice is not given after the first opening hearing, and the “conference draft,” the new form of the bill to be discussed, is not made public before the meetings. With good intentions this is understandable and workable. But this process is abused to make the worst of a bad situation.

The first five of those days are wasted completely. Each committee meets for an opening meeting, and does nothing but set a date for subsequent meetings a few days later. This goes on for a few days until there is only a day or so left, and then a sense of urgency sets in amidst a manufactured chaos.

Those who care about the bills that were advanced all year, legislators and public advocates alike, are now excluded from seeing what’s really going on. Bills are sometimes amended in conference to include parts that were never heard in public hearings. This is against the Legislature’s own rules, and happens regularly.

A mysterious power now becomes omnipotent, the magical “money release.” This is an approval given or withheld by the chairs of the two money committees, and amounts to a veto power by these two individuals.

Already the two most powerful players because they control the budget, now they can kill any bill without comment. Horse trading, veto threats, and hidden agendas now dominate the supposedly parliamentary process. “Money release” is usually given only in the final two days, causing the well-intentioned bill sponsors to panic and give in to demands.

At the beginning of session bills are introduced and referred to various committees. Powerful chairs, acting in step with the chamber leaders, can insist that any given bill go through the money committee even if the bill has no money appropriation in it. These are now “fiscal bills,” subject to magical money release at the very end, and many die unexplained deaths.

In this way, the money chair is assured veto power over any bill at the end, in the most obscure way, without reasons needed. This is used for horse trading, and to punish those with whom the powerbrokers are displeased.

We saw this clearly last conference season when Sen. Donovan Dela Cruz inserted himself personally onto conference committees opposite a representative from whom he wanted concessions on other bills. This is highly unusual and possibly unprecedented, but he got what he wanted. It’s hard to overstate the concentration of power here, and the anti-democratic nature of the process.

In reality all the bills that the money chairs are going to approve could be revealed at the beginning of conference, but this is not done because it lessens the coercive power of the few, and might require that questions be answered.

By not doing so, the chaos, confusion and urgency are maximized with an important side effect — the money chairs get to operate like kings and queens, and this sense of power over others is relished.

Remember, these bills awaiting “release” have already been approved in the money committees themselves and on the floor with the whole chamber voting, and release is granted or withheld only after agreement on the conference draft by both sides. It’s not about the merits of the bills, it’s about hidden power.

Until the last few days and magical money release time, all is just theater. Agreements are delayed without reason or purpose.

I witnessed a humorous example of this when I was chair of the Senate Agriculture Committee a few years ago. A conference draft was given by my House counterparts, who had included a clause that they assumed I would reject. After consultation with my committee, we felt the bill was acceptable. When in committee I moved to agree with the House draft, the House chair and vice chair picked up their jaws from the floor and whispered about how to react. They declined to agree. I clarified publicly that they were refusing to agree with their own draft!

 At another conference hearing about a non-controversial education bill, two senators on the committee came in, hopping mad about losing a battle in another room on an unrelated bill. They announced they were so mad at “The House” that they killed the education bill, even though none of the same people were involved. A good bill, worked on all year, died due to childish, misplaced vengeance. “The House” wasn’t punished but a good bill died for no reason.

I hope these examples show some of the absurdity and posturing that replaces honest negotiations and agreements.

Some of these procedures are appropriate, but the secrecy and chaos are absolutely unnecessary, intentionally manufactured and anti-democratic. The Legislature could improve its process and improve public trust by simple reforms. Negotiations could start at beginning of conference season without the routine delays.

Conference drafts could be posted in advance of hearings. The veto power of “money release” could be limited to bills with appropriations. Public discussion and explanations of what’s going on could be standard practice. And the rules about “gut and replace” or inserting previously unheard amendments could be taken seriously.

Sunshine would help the Legislature recover some of its public trust which is at an all-time low. The expressed desire to do better is easily achievable if it’s sincere.

Nowhere are improvements needed more than in the opaque process which is conference committees, and nowhere could it be more easily achieved.