Friday, October 19, 2007


Superferry dredges up muck in Hawaii's system of governance

The saga of the Superferry has raised some new and some long dormant issues that should concern all of us. Just as examples, the role of big money (Hawaii ferry spent $175,000 on lobbying) in legislative decisionmaking, abuses of the legislative process, the need to pay to play if you want to do business in Hawaii, and the quality of our legislative leadership.

Leadership places big money first, people last

Actually, Hawaii's legislature has passed quite a bit of progressive legislation and our state often leads the entire nation. We have a health insurance law, for example, that is the envy of people in other states. It's because we can do so well that we need to defend against the influence of big corporate money, whether it is big oil or J.F. Lehman & Company. We also currently have an administration governing the state that is closely allied with big oil (killing the gas cap) and now with big military investors (pushing for unconditional entry of the Superferry). And they are just good enough with PR to make it work.

Embedded in Richard Borreca's article Group pushes rules on ferry today is this little gem. Referring to the draft bill that will likely be considered in a special session of the legislature to be held next week:

j1 "We believe this bill is an unconstitutional retroactive overruling of a judge's decision that could be challenged," [attorney Isaac] Hall said, noting that the group might still sue.

"We are looking into whether or not this particular bill, bailing out the Hawaii Superferry, is special legislation that denies our constitutional vested rights and violates the separation of powers," Hall said.

In response, Hanabusa, who spent yesterday afternoon meeting with House Speaker Calvin Say and Attorney General Mark Bennett on the bill, would only say that she thought Hall is "a very good attorney."

"It will be a nice test of Mark Bennett's talents," said Hanabusa, who is also an attorney.

Notice how neatly the serious issues of constitutionality (and other issues raised by the Maui delegation) have been ignored in Sen. Hanabusa's remark and the whole thing turned into a jousting match between two opposing attorneys. Wouldn't it be cool if we could just put the two of them in a room, let them fight to the death, and whoever survives gets the prize? Earlier, Hanabusa was quoted as saying that the Superferry needs to "manage" Kauai. If she is being accurately quoted in these articles, there are questions some enterprising reporter might ask her about leadership and representation.

I wrote also about the kabuki play planned for the opening of the House session, at which Speaker Calvin Say (whose son worked for the Superferry and who was the largest recipient of Superferry largess in the Legislature) will have his protege absolve him of any alleged conflicts of interest.

Big money steers Hawaii's ship of state

Let's put the $175,000 in perspective. The article notes that the money was spread over three years, but it was still for the single issue of getting the Superferry started in Hawaii with exemptions from our laws and regulations. Whether or not the Superferry will be used for military transport here, there is an interesting comparison that might help put the $175,000 in perspective. Thomas B. Edsall reports in the Huffington Post:

Employees of the top five arms makers - Lockheed Martin, Boeing, Northrop-Grumman, Raytheon and General Dynamics -- gave Democratic presidential candidates $103,900, with only $86,800 going to Republicans.

Let's see, that comes to $199,700. For a presidential race. From the major arms makers, who are reaping a fortune thanks to ongoing wars. If that's looked on as big money, isn't $175,000 a huge amount for a little bitty state like Hawaii, for a little bitty thing like running a passenger ferry a couple of times a day?

When I read Sen. Hemming's broken record remarks about how this will tarnish Hawaii's business reputation, I can only think of the bad shape it's in right now. The Superferry example demonstrates that if you want to do business in Hawaii it's necessary to grease the right palms. There are certainly plenty of businesses (particularly retail) that established themselves in Hawaii without resorting to bribery, however this high-profile case demonstrates only the seedy side, the banana-republic side, and it shouldn't have happened this way.

Lingle accepted contributions and so did Speaker Calvin Say. Lingle has formed a "Unified Command" to put down opposition among concerned citizens of Hawaii. Anyone whose image of a banana republic is that it is a place run by a tin-pot military dictator on the take might not be far off, should the $18,000 in armor that her administration has ordered (under stamp of secrecy by the Coast Guard) be used against the gentle people of Kauai.

 The Superferry has underlined how very badly we need to have a clean elections law in this state.

Hawaii's constitution is just a piece of paper on the wall

Whether it's special protection of the environment or an explicit right of privacy, there is wisdom and guidance in our State Constitution. Since it is the basic legal document, you'd think our legislature, our attorney general and our governor would go to it first when complicated issues arise. The Superferry is hogging the headlines right now, and at least one of the constitutional issues is whether the Legislature can override the courts. They seem quite willing to do so.

But before the ferry there was the drug sniffing dog issue in the schools, drug testing of teachers, for example.

It may be the nature of government, anywhere it seems, to stretch, warp, or ignore the state or federal constitution from time to time, and then we have to depend on the judicial system to set things right. It's particularly troubling when a state legislature is willing to block the courts from doing just that.

I've been told that there is no problem because the legislature is making new law, which the state will then follow. Give me a break. The legislature is simply trying to overturn a State Supreme Court decision.

Of course, I'm not a lawyer. I hope, though, when the Superferry thing blows over, we'll all have a greater respect for the state constitution which will help sort out other difficult issues that we face from time to time. Again, and I hate to harp on this, but another facet of the stereotypical banana republic is that it has a legal system so flexible that any business can use influence to bend laws and regulations to its benefit. Isn't that what we're seeing here now?


What the Superferry is dredging up is not how advanced and sophisticated Hawaii's government and business climate is, but how much it resembles that of some small island in a far-away place that has not yet mastered the basics of democratic representative government.


It's hard to tell what Isaac Hall meant. There’s nothing unconstitutional or even unusual about a legislature changing or writing a law to “mend” a court decision it dissaproves of (in fact, sometimes when a law results in an unexpected but inevitable unjust outcome (not that that was the case here) a judge will, in the opinion, advise the legislature to revisit the law). And it certainly, of itself, raises no separation of power issues.

However, I suppose Mr. Hall probably means that the new law itself, not the making of it, would somehow violate the constitutional rights of the plaintiffs and that something in the actual law - the way it accomplishes its aims - results in a violation of the separation of powers doctrine.

Whatever else he means, it is pretty clear that he is saying the Sierra Club et al will be challenging the law in court.

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