Editorial: Stop practice of ‘gut and replace’

There is a lot to like about efficiency in government — unless it’s designed to keep the public in the dark.

Good-government advocates describe an example of such a technique, one that’s become part of the furniture at the state Capitol, as “gut and replace.”

This lawmaking maneuver allows a proposal to move swiftly to passage without the required hearings and public review: A bill that has progressed through the Legislature is gutted of its content and becomes the receptacle for the language of another measure, often one that’s wholly unrelated to the original subject.

The welcome move to challenge this in court should at the very least shine a bright light on the practice and, if the lawsuit succeeds, force a change that will improve transparency for the public benefit.

Common Cause Hawaii and the League of Women Voters, frequent critics of this and other tactics that cloud the government process, are the plaintiffs in the complaint filed against the state in the 1st Circuit Court. In the suit they seek to invalidate Act 84, and the process by which that law passed, as unconstitutional.

The measure, on its face, went through its required hearings in this year’s Legislature. It was passed as Senate Bill 2858, still with its original title, “A bill for an act relating to public safety.” But that, and the bill number, were the only elements that hadn’t changed substantially by the end.

The original bill would have required the Department of Public Safety to prepare an annual report about the recidivism and rehabilitation of inmates. But the language Gov. David Ige enacted actually had been raided from another bill, one that would require the design of new state buildings to include hurricane shelter space.

Still about “public safety”? Only in the most nominal sense.

Under Article III, section 14 of the Hawaii Constitution, “each law shall embrace but one subject, which shall be expressed in its title.” And section 15 asserts that “no bill shall become law unless it shall pass three readings in each house on separate days.”

“The May 1, 2018, reading was the only Senate reading of the bill after it had been fundamentally changed to pertain to hurricane shelters rather than reporting from the Department of Public Safety,” the plaintiffs contend in the lawsuit.

The purpose of the constitutional rule about the subject of a bill is to prevent the “surprise and fraud” of vague bill titles, according to the complaint.

It also aims “to fairly apprise the people through publication of legislative proceedings of the subjects of legislation that are being considered, in order that they may have the opportunity of being heard.”

Not only was the public insufficiently heard on the hurricane-shelter topic, anyone who had weighed in on the original proposal about prisoner recidivism and rehabilitation was effectively cheated when that measure was gutted.

The Legislature routinely passes “short form” bills, with no real content, to enable the consideration of proposals after the bill-introduction deadline has passed. That’s a tolerable workaround, as long as the substance of the bill gets its required vetting in public.

But this is a knottier problem, and not unique to Hawaii. California, for example, passed an initiative aiming to bar its own “gut and amend” maneuver. That state’s lawmakers are still at odds over implementing the initiative.

And in Hawaii there are many more examples: Each year Common Cause issues a “Rusty Scalpel Award,” a dubious honor for such acts. Last year, the winner was a bill that morphed from a fix for income tax rates to an appropriation to address homelessness.

The Legislature on its own could improve rules requiring titles that specify a bill’s purpose more plainly. But it seems it’s going to take a push from the court for lawmakers to do the right thing — for good government.