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Imagine a Hawaii Legislature where every measure that receives a public hearing also gets an up or down committee vote.

Even a chair’s motion to defer a bill — which currently amounts to fatally shooting it with a silencer — would require a vote of all committee members.

Instead of just verbally announcing amendments to a bill, the chair would have to give advance notice of the proposed changes to committee members and the public.

Only bills with some sort of budget impact would be referred to the money committees, whose chairs currently hold sway over a lot of non-fiscal legislation.

This may all sound like an impossibly idyllic new way of life at the State Capitol. But it could all be accomplished on the first day of the next session by lawmakers themselves — majority votes in the House and Senate would simply change their own rules.

Recently we wrote about the legislative reforms that could be accomplished under the existing rules — if only lawmakers had the knowledge and gumption to use them. Today we’re talking about suggestions for rule changes.

In both cases, not a single new law is required — just changes in how our elected officials choose to do their jobs.

Where Does The ‘Bill Of Rights’ Stand?

When it comes to the potential to reform the Legislature through House and Senate rules, we realize we are repeating ourselves. But this is important enough to beat a proverbial dead horse now and then, because so far the needed changes just haven’t happened.

Take the so-called “Bill of Rights” setting out what citizens and state lawmakers alike should be able to expect from the Legislature. It was proposed last year by the , initially with a measure that would have written those “rights” into statute and have them enforced by a new Office of the Public Advocate.

Instead, was deferred by the House Judiciary chair with no committee discussion, just a mention of the possibility that some parts of the measure might be included in House rule changes.

Rep. Nadine Nakamura, the House Majority leader, contends that this is exactly what happened. She took issue with our Oct. 15 editorial, which argued that “most” of the proposed “rights” did not result in rule changes.

“Generally, the House Rules are adopted within a week of opening session, however due to the importance the House of Representatives placed on the recommendations of the Commission to Improve Standards of Conduct, during the Regular Session of 2023, the rules were not adopted until February 22, 2023,” Nakamura wrote in a Thursday letter to Civil Beat. “This gave all members a chance to review the proposed changes that were based on the solid work of the Commission.”

What Changed And What Didn’t

But, by Nakamura’s own accounting, just five of the 13 proposed “rights” resulted in rule changes. She argues that some of the others are already taken care of through House “practice.”

But the fact is, some of the most substantive proposed “rights” are not. These include:

• The right to expect that the original content of a bill is not suddenly and substantially changed without a public hearing on the new content.

The Hawaii Supreme Court already took care of this with its 2021 ruling that was supposed to ban the gut-and-replace practice, Nakamura said.

But you only need to look at the torturous path of  last session to see that committee chairs can still radically alter proposed legislation without holding a new public hearing. In that case, much to the consternation of the League of Women Voters Hawaii, what started out as a measure to prevent politicians from regifting their campaign contributions turned into a bill that would have made it easier to do just that.

• The right to expect that legislators have sufficient opportunity for open and honest debate on the merits of a bill, rather than burdening measures with multiple committee referrals that inhibit such debate.

Nakamura basically disagreed with the need for this proposed “right,” stating that “The House believes that having multiple committees weigh in on complex legislation should be encouraged, not discouraged.”

She added that “committee chairs typically work together and hold joint hearings for time efficiency,” but it’s widely accepted that multiple committee referrals lessen the chances for legislation to pass.

• The right to expect that subject matter committees pass bills without deliberate defects, including defective dates, and with recommended appropriation amounts.

“The House is deliberately using the date June 30, 3000 to ensure bills go to conference and that differences are worked out,” Nakamura said.

But many measures that go to House-Senate conference committees are never seen again. She added that House leaders “recommend that committee reports include appropriation amounts,” but many don’t.

Lawmakers could shake up the status quo by limiting the leadership terms of the Senate president, the House speaker, the chairs of the money committees and others.

• The right to easily inspect drafts of bills submitted to legislators for introduction or amendment, including the right to know who provided the draft if that person is a member of the public or a lobbyist.

“If members of the public, including the media, are interested in learning more about the background of the bill, it’s best to call the subject legislator and ask about the genesis and stakeholders involved in crafting and advocating for a bill,” Nakamura said.

That suggestion, of course, falls far short of changing the rules to make it a right to know who is writing the bill.

The proposed “rights” that were at least partially addressed in House rules changes last session include:

• The right to expect that the person’s elected state representative or state senator will be treated with fairness, equity, dignity, respect, and inclusion, regardless of seniority, faction, or party;
• The right to be treated with fairness, equity, dignity, respect, and honesty during public hearings … and to prohibit retaliation, including the elimination of a specific position from the budget, for any good faith conduct at a public hearing;
• The right to provide oral testimony at any public hearing;
• The right to publicly inspect written testimony no later than 24 hours after the written testimony is submitted;
• The right to hear the rationale for any decision made by a committee or committee chairperson, such as the deferral or amendment of a bill, in a public meeting.

So Many Ways To Get Better

Members of the standards commission aren’t the only ones calling for legislative reform through rule changes.

For instance, while it would take voter approval of a constitutional amendment to impose term limits on legislators, the lawmakers themselves could shake up the status quo by limiting the leadership terms of, say, the Senate president, the House speaker, the chairs of the money committees and other top leaders.

During the last election season, some legislative candidates suggested changing the rules to do just that in their Civil Beat candidate surveys. Sen. Angus McKelvey may have put it best:

“We need term limits for the various chair and leadership positions in the Legislature since it is through holding these positions for years that incumbents can build lofty war chests,” said the Maui senator. “These limits would ensure the injection of fresh ideas and perspectives and create more well-rounded lawmakers because they would have experience in all the different areas the Legislature addresses and the internal structure of organizational leadership.”

Civil Beat proposed a passel of rule changes during the last session, including ending the practice of voting “yes with reservations,” an option used 935 times during the 2022 session alone.

It’s a long-standing but rather cowardly tradition that allows legislators to play both sides of an issue. If a bill turns out to be unpopular, they can then tell their constituents they weren’t completely on board in the first place.

The National Conference of State Legislatures knows of no other state that permits voting “with reservations.”

Janet Mason of the League of Women Voters put it this way: “The Legislature is a place where people are supposed to make a decision, yes or no. So why not just step up and say yes or no?”

The lawmakers who operate under the rules of the House and Senate no doubt have additional ideas about rule changes that could improve the legislative environment. But the fact is that individual legislators rarely propose them.

Instead, to the extent they happen at all, rule changes come generally in a formal process at or near the beginning of a biennial session.

That too needs to change for real reform to happen during the fast-approaching new session.