by Malia Hill, Grassroot Institute
In retail sales, it’s known as “bait and switch,” and tends to make people angry and occasionally litigious. But in the Hawaii Legislature, it’s known as “gut and replace,” and while it still makes people angry, that’s only if they can catch you first . . . and chances are that they won’t.
If your main memories of how a bill becomes a law are made up of hazily remembered civics lessons (or Schoolhouse Rock episodes), don’t be too hard on yourself. You’re still ahead of the curve. Most of us grasp the essence of the Introduced . . . Debated . . . Voted On . . . Signed or Vetoed progression, but get tripped up with the multiple readings, committee hearings, and the like.
The process itself makes it a challenge to track a bill—and that’s before one takes into account the sheer number of bills involved. In 2012, 2291 bills were introduced as well as 708 resolutions. And while the majority of them languish in committee, some that appeared dead can be resurrected in a kind of Franken-bill that unites a dead bill’s title and number (and committee progress) with new content. And while citizen watch groups try to keep up with such changes, the nature of “gut and replace” as well as the glut of legislation and frenzied last days of the legislative session makes it a creative way to bypass public attention on possibly controversial legislation.
For example, in the 2012 session, Senate Bill 755, titled “Relating to economic development” began as a tax incentive for retailers who reduced prices on certain items (such as books) sold to students. Through the magic of gut and replace, it then spent some time as a proposal to authorize peer-to-peer poker tournaments before finally attracting the ire of local environmentalists in its final form, as a proposal to speed up state and local construction projects by easing environmental regulations. (A previous effort to pass these environmental waivers had died in the Senate.) And then there is House Bill 2483, which started in the House as a measure related to climate change adaptation priority guidelines, but was gutted in the Senate and replaced with language to institute a fee on non-recyclable plastic bags—a proposal favored by Governor Abercrombie and the Senate leadership (but which failed in the House). In all, approximately three dozen bills were subjected to the gut and replace process in the 2012 session alone (see addendum), and there is no indication that the practice will stop or slow in the near future.
The key to “gut and replace” comes in the committee process. On introduction, a bill in Hawaii is assigned a number, gets its First Reading, and is assigned to the appropriate committee or committees. Committee assignments are given according to the subject matter, i.e. budget matters to the Finance Committee, employment issues to the Labor Committee, etc. However, it should be noted that not only are there quite a few different committees to which a bill can be referred, but that many—if not most—bills are referred to multiple committees. For example, a bill proposing a change to licensing fees for registered nurses might be referred to the Committee on Health, then the Consumer Protection Committee, and then the Finance Committee. Assuming the bill passes out of committee and is voted on and passed by the House (or Senate), it then “crosses over” to the other side of the legislature in order to go through all the committee referrals and readings there. If it passes the committee readings and a vote from the House/Senate on this cross-over, the bill—with any new amendments acquired in its cross-over trip, is voted on again by the originating body of the legislature. And while it is theoretically possible that it is then simply passed with all amendments so that it may wing its way toward the Governor’s desk for signature, veto, or de facto passage by time limit expiration, it is far more likely that the amended bill will not be approved, but instead go into yet another committee—the Joint Conference Committee—to iron out differences between the original and amended versions in order to find a version that both the House and Senate will accept.
The long and the short of it is that committees are where the vast majority of bills go to quietly die and get buried. And it’s also where eager lawmakers go to find new legislative costumes for the pet issues and bills that would otherwise be wallflowers for the rest of the session’s law-making dance.
In the rare example of a political term that accurately describes the actual process involved, “gut and replace” refers to the practice of removing the contents of one bill and replacing it with the language of another legislative proposal, so that all that remains of the original bill is the title, the number, and the fact that it is still technically alive enough to be able to move forward. In essence, a legislator with an issue or proposal that hasn’t had any traction to date finds a bill that has moved through enough hearings to be considered still eligible to move forward, but which is unlikely to pass. He or she can then replace the language of that bill with something completely different, so long as the new content still has some relationship to the bill’s original title. And then this new legislation in old clothing can move forward, having done an end-run around both procedure and its possible opponents.
One might hope that the requirement that the new content be related to the original title is some safeguard against excessive use of gut and replace. But while that may be so for bills that have highly specific titles, it’s all too easy to find something usably vague like “Relating to Taxation” or “Relating to Economic Development.”
Taomae v. Lingle, a 2005 Hawaii Supreme Court ruling, provides another minor restraint on gut and replace by requiring that the original bill receive sufficient readings in the House and Senate (three readings in each) in order to be validly adopted. The Court’s decision also reiterates the importance of clarity of name by stating that a proposal to amend the state constitution must be reflected in the title of the bill. (However, as most gutted and replaced bills are not potential constitutional amendments, this does not function as a significant barrier.)
It is obvious that the practice of gut and replace is contrary to the concept of an open and transparent government. Though an advocate might argue that the information and actions involved are part of the public record, and therefore accessible to all, that is a serious mischaracterization of both the practice itself and the legislative process in general. In a sense, the legislator who uses gut and replace to resurrect a stalled proposal is similar to the lawyer who floods an adversary with documents during discovery in attempt to obscure something harmful to his case. Both are using the “needle in the haystack” approach to disclosure of information. Yes, they can claim that they have been transparent, but that argument only works on technical grounds. In truth, they each take advantage of systemic loopholes to hide in plain sight. As any advocacy group that has to keep an eye on legislative issues can tell you, tracking bills can be an arduous, near-impossible task, even without having to take into account the possibility that a previously innocuous bill can suddenly become a hot-button issue.
And then there’s the matter of political deal-making. It is no surprise that deals and political horse-trading have an effect on the fate of proposed legislation, for good or ill. But adding the phenomenon of gut and replace to the fabled smoke-filled room of politics adds yet another level of obscurity to the process. Thus, the President of the Senate and the Speaker of the House have the power to resuscitate bills that fail to make deadlines, which is the ideal place to rejuvenate a gutted bill that has been refitted with a previously failed or controversial proposal.
Moreover, many of these last-minute deals and revisions come near the end of session, a time already complicated by harried schedules, and made even less transparent to the public by virtue of the fact that Conference committee discussions are generally closed-door affairs.
For the public, the fact that an already unfriendly and arcane process has become even more inaccessible should be a major concern. And yet, there has been no serious effort to date to restrict the practice.
Few outside of the state house are even aware of its existence. A recent article in the Honolulu Star-Bulletin by Vicki Viotti has begun to raise awareness of the issue, and the furor over several high-profile gutted bills may make legislators more cautious in the future. However, the sheer number of bills subjected to gut and replace in 2012 alone (see addendum below) suggests that real action must be taken to curtail the practice.
The truth is that as long as the practice of gut and replace does not violate the law or any legislative rule, its political benefits for legislators will far outweigh the transient upset of a duped public (assuming that anyone notices the maneuver in the first place). While greater transparency—such as a mandatory and specialized public posting of such substantial changes to a bill—might be a partial remedy to the problem, it is more likely to create more loopholes than to restrict the practice itself. After all, one must remember that gut and replace currently takes place in the public eye, and so is technically transparent, if not functionally so. More effective would be the enactment of specific rules and/or laws prohibiting the practice. Though this would require that rarest of all possible beasts—the self-regulating, self-restricting legislature—the fact that there are several Hawaii legislators already on record as opposing the practice is a cause for optimism. In this election year, Hawaii voters should take the opportunity to ask candidates for public office about their stand on gut and replace and press them to support an end to this legislative bait and switch.
In the 2012 Legislative Session alone, the Grassroot Institute discovered that approximately three dozen bills had been given the “gut and replace” treatment. For more details, see below.
LINK: List of Gut and Replace Bills in the 2012 Legislative Session