Friday, February 04, 2011
The purpose of this title is to have a title, or, How the Legislature plays with the rules
by Larry Geller
There are rules in the Hawaii State Legislature for when bills have to be introduced. The time for introduction is now past. But what if someone doesn't like those rules? In Hawaii's democracy, there's always a way.
Check this out.
This bill not only passed First Reading, but is scheduled for decision making next week:
What’s this about? It’s a trick.
This has to do with the state constitution, which states:
Article III Section 14. No law shall be passed except by bill. Each law shall embrace but one subject, which shall be expressed in its title. The enacting clause of each law shall be, "Be it enacted by the legislature of the State of Hawaii."
It’s clear, though, that this bill cannot become law. At the February 7 hearing, the language of the bill will be gutted and some other language will be inserted, we know not what.
And the bill will go forward through the process.
Sneaky, huh? And as I read the constitution, the process is unconstitutional.
Article III Section 15. No bill shall become law unless it shall pass three readings in each house on separate days. No bill shall pass third or final reading in either house unless printed copies of the bill in the form to be passed shall have been made available to the members of that house for at least forty-eight hours.
Note that this “bill” has passed First Reading. But legislators plan to put new language into it. The language that passed First Reading will be abandoned. The new language will not have passed First Reading.
While convenient for legislators, this is a trick at best and perhaps also unconstitutional. If someone doesn’t like the law that HB389 becomes, they might challenge it in court. I don’t know if that has happened already. Does anyone know about the history of these stealth bills? Please comment.
It's a short form bill. They are not new, there are dozens introduced every session by pretty much every committee chair, and most short form bills are never scheduled for a hearing to have substantive language inserted in them.
Short form bills have become law, and your interpretation of what passes for a "reading" of a bill is more strict than what actually holds.
Could short form bills be abused? Sure, but the intent of the bill would only be a "secret" for the first reading in one chamber. Now consider this: the legislative session is only 60 days long, the bill introduction deadline passes very early in that 60 days. If there is an emergent issue (or a potential solution to a long-standing problem) that arises during the session but AFTER the introduction deadline would you rather have the Lege sit on its hands (i.e. waiting for a special session or the next regular session to introduce legislation to address the issue) or use a short form bill to promptly take action?
a bill's existence is by its ordinal number, not its content. otherwise, it would be impossible for a bill to be amended without going through three additional reading in each house. the constitutional requirement of notice before final reading and the reading on three separate days is to help slow down this "stealth bill" type legislation a little bit but the more deliberative, customary process most bills go through is for the convenience of the legislators but it's not a constitutional requirement. also a rule adopted by the majority can be disregarded by a subsequent majority even on just that one occasion that it is disregarded.
I know that this is regularly done.
And I understand why it is convenient.
But necessary? The requirement for three readings is in the constitution, and this subverts it.
If a bill is amended to the point where it does not resemble the original (as most flagrantly happens with a "gut and replace"), that's the problem in spades.
You and I know how frequently this technique is used, but I don't think the general reader is aware of it. And I think it's reasonable to question whether the constitution requires a bill to go through three readings before become law, which this (and other similar) bills will not.
I can't answer my own question and am not a legal scholar. I do think it's reasonable to ask, though.