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In a victory for government reform groups, Hawaii state lawmakers cannot employ “gut-and-replace” amendments to speed along bills.
When Hawaii state lawmakers return to the capitol next week, they will have one less tool available to quickly move crucial—and often controversial—legislation.
In a victory for government reform groups, the state Supreme Court in November ruled that lawmakers could not use “gut-and-replace” amendments to speed along bills. The tactic, which is common in many states, involves erasing the text of a bill that has advanced in the legislative process and replacing it with a different proposal.
Common Cause Hawaii and the League of Women Voters of Honolulu brought the lawsuit after a bill it supported, which dealt with recidivism among people who went to prison, was transformed into a bill about building codes. Both topics related to the bill’s title, which described it as legislation about “public safety.” The court’s ruling makes those kinds of maneuvers illegal in the future, but it does not affect previously enacted laws.
State Senator Gilbert Keith-Agaran, an attorney and a member of the chamber’s Democratic leadership, said the court’s ruling could make it harder for lawmakers to respond to crises, such as when the state is hit by hurricanes or severe winter weather. Relief bills that could pass quickly now might require the governor to call a special session, and other bills might just take longer to pass, Keith-Agaran said.
“On the other hand, I don’t think the Supreme Court completely ruled out amendments. Basically, we need to just pay a little bit more attention to whether or not proposed amendments are germane to the content of the bill that’s before us,” he said.
Tactics In Other States
Still, the Hawaii ruling is a rare rebuke. State courts often shy away from scrutinizing the day-to-day operations of state legislatures. That gives advocates in other states with few good options to ban lawmakers in their states from using similar tactics.
California voters in 2016 put the brakes on last-minute amendments, by requiring lawmakers to publish any amendments 72 hours before taking a vote on them. But legislators there still regularly use “gut-and-amend” maneuvers to speed up legislation.
Lawyers in Illinois are challenging the practice, in one of several arguments before the state supreme court over the scope of a 2014 ride-hailing law.
Several states, though, prohibit the practice. The state constitutions of Alabama, Arkansas, Colorado, Louisiana, Michigan, Mississippi, Missouri, Montana, New Mexico, North Dakota, Pennsylvania, Texas and Wyoming require bills to adhere to their original purpose through the legislative process.
In Hawaii, the high court ruled that the last-minute substitutions let legislators effectively ignore requirements in the state constitution that bills must travel methodically through the legislative process. The charter requires that bills be read–that is, advanced to the next stage–on three separate days before they pass a chamber. The idea is to give lawmakers and the public plenty of notice that an idea is being considered, so they can respond appropriately.
“The framers [of the Hawaii constitution] intended the [three readings] rule to provide notice or a bill’s contents, facilitate informed debate, prevent hasty legislation and provide the public with notice and an opportunity to comment on proposed legislation. In order to effectuate this intent, a bill must retain some common attributes between readings,” the majority of the Hawaii Supreme Court held in a 3-2 decision.
“Thus, we are convinced that in order to satisfy the three readings requirement, a bill at each subsequent reading must bear some semblance to the previous versions read beyond merely having the same title and number,” the court ruled.
Chief Justice Mark Recktenwald dissented, with another member of the court joining. They argued that the court was overstepping its authority in effectively micromanaging the legislature.
“Our constitution reflects carefully crafted judgments as to whether to entrust specific decisions about managing the legislative process to the legislature itself, or whether to specify them in the constitution. When the plain language of the constitution gives discretion to the legislature to determine how to manage its affairs, we should respect that judgment,” Recktenwald wrote.
Sandy Ma, the executive director of Common Cause Hawaii, told Route Fifty that the case was important to “get good guidelines” from the courts; otherwise, lawmakers “could do anything they want.”
How the legislature responds to the ruling could affect its reputation, she added. “People in Hawaii think the fix is in, this is just how politics is played, and even with this decision, legislators will just try to maneuver around it,” Ma said. “I’m hoping that will not be the case.”