The legislative maneuver known as “gut and replace” would be better served by the name “gutless,” and it needs to be gone.
The common tactic is used by lawmakers to hijack bills, replacing their guts with new legislation that is supposedly related, although usually you have to squint pretty hard to see any connection. Since the original bill normally has already cleared preliminary votes in both House and Senate, and gone through public hearings, the new legislation ends up on a streamlined path to a final vote.
In this way legislators can bypass procedures designed to assure transparency in lawmaking. In other settings this would be called an end run, or even cheating.
The League of Women Voters of Honolulu and Common Cause Hawaii called the Legislature out on this practice in a lawsuit that went to the state Supreme Court and — hallelujah — a ruling last week went their way. But because common sense and constitutionality are separate matters, the ruling didn’t outright outlaw gut and replace — it struck down the particular legislation that the plaintiffs used to bring their case to court.
Still, it was a major slap-down, a clear warning against passing future measures this way.
The bill in question — Act 84, passed in 2018 — started out to be about prison recidivism, but became an act requiring hurricane shelters in new state buildings. The connection? Maybe the words “public safety” in the title of the bill? It takes some twisted logic to justify the switcheroo, especially since the bill eventually was amended to simply require that hurricane-resistant criteria be considered in new public schools. Hard to see any urgency in that to justify the shortcut.
Bottom line: The recidivism bill was erased, wasting the time of all those who took the trouble to testify (largely in favor) of the original proposal and wiping out the good it might have done.
Gut and replace was most recently used this year to eclipse a bill on aerospace, adding language that ended up eliminating the counties’ and the Hawaii Tourism Authority’s annual allocations of transient accommodations taxes. What’s the connection there? Tourists come on planes and planes fly? The repercussions of this bombshell are likely to resound within the industry and the counties for a good long time.
In its decision on Act 84, the Supreme Court majority cited language in the state Constitution: “No bill shall become law unless it shall pass three readings in each house on separate days.” Because the content of the bill was substantively changed — with the new language no longer “germane” to the original — the process should have started over, requiring three floor votes in each chamber to pass.
In declaring the law unconstitutional, the justices overrode a Circuit Court ruling agreeing with the state and the Legislature — based upon the Legislature’s own rules, those parties argued, a bill need only be voted upon by number and title, not content.
The Supreme Court ruling was close, 3-2, with Chief Justice Mark Recktenwald writing in dissent that the Constitution does not specify what a “reading” must entail, nor does it limit permissible changes to a bill, germane or not, only that legislators must be provided with copies of the bill in its final, amended form 48 hours before a vote.
Here’s the thing: Hair-splitting interpretations of the Constitution are for the courts. Lawmakers can’t hide behind them. Gut and replace — even by its more official description of “amending by deleting and replacing” — is simply the wrong way to go about the people’s business. If a vehicle is needed to expedite legislation in cases of true emergency, then create one, but let it be transparent.
Enough with the sneaking around.
