Good riddance to ‘gut and replace’

by Keli'i Akina, Ph.D., President/CEO Grassroot Institute, November 6, 2021

It was a great victory for government accountability when the Hawaii Supreme Court ruled Thursday against a long-standing but deceptive legislative practice

“Gut and replace” is finally dead.

For years, Hawaii’s government watchdog groups have protested the Legislature’s use of a procedural loophole that allowed them to pass laws without a full set of public hearings.

Known as “gut and replace,” the tactic generally involved taking a bill with a vague title that had already been heard by one of the Legislature’s two chambers, removing its language, and replacing that language with new and unrelated content. The revised bill then would be approved and signed into law without ever having to go through the full process of multiple hearings and readings in both chambers.

Every legislative session usually has at least a few gut-and-replace bills, along with their close cousins, the “Frankenbills,” which are measures that are not completely gutted, but still pick up radically new and unrelated content after they crossover.

With these kinds of political maneuverings at the disposal of our legislators, veteran political observers would always warn that no bill is ever completely dead; there is always the chance it will end up being a victim of “gut and replace.”

In the 2021 session, for example, the omnibus tax bill SB56, which would have given Hawaii the highest income tax rate in the nation, failed to win approval, but several of its proposed tax increases resurfaced as part of a Frankenbill, HB58. That measure did win approval by the Legislature, but was vetoed by the governor.

There were many problems with “gut and replace,” but the most egregious was the way in which it bypassed full public participation in the legislative process. It is difficult for the average citizen to track the many bills and hearings in a typical legislative session. With gut and replace, it was possible to pass a law without subjecting it to the full set of hearings and opportunities for debate.

The Grassroot Institute of Hawaii long criticized the practice. Along with other transparency advocates, we regularly highlighted the problem of “gut and replace,” reported on gut-and-replace bills, and called for its abolition.

However, even widespread public opposition could not persuade the Legislature to abandon the practice. So the League of Women Voters of Honolulu and Common Cause Hawaii, with the help of the Civil Beat Law Center, brought a lawsuit against the state in September 2018, arguing that “gut and replace” is unconstitutional.

In December 2019, the institute submitted an amicus curiae brief in support of the plaintiffs, arguing that the practice was eroding public trust in government and short-circuiting the democratic process.

The particular law challenged in the case of League of Women Voters v. Hawaii was Act 84, enacted in 2018. The law started as a bill in the Hawaii Senate with the aim of requiring certain information be reported about individuals who had recently been released from prison. The bill was approved by the Senate and crossed over to the House, where all of its language was removed and replaced with requirements regarding hurricane shelters. The only thing that stayed the same between the two bills was the title. The hurricane shelter bill passed the House and was signed into law.

In the lawsuit, the plaintiffs claimed that the gut-and-replace mechanism used in passing the bill violated Article III, Section 15 of the Hawaii Constitution, which requires that every bill “pass three readings in each house on separate days” before becoming law.

They said that when the bill changed so dramatically after moving from the House, it essentially negated the three readings in the Senate. Those readings were about a totally different topic, and the mere fact that the bill retained the same name and number was not enough to fulfill the constitutional requirement.

Though it would seem a clear constitutional violation to you and me, the lower court nevertheless ruled in favor of the Legislature, allowing “gut and replace” to continue.

So the plaintiffs appealed to the Hawaii Supreme Court, and on Thursday, it finally issued its decision: “Gut and replace” is unconstitutional.

By a 3-2 majority, the Hawaii Supreme Court agreed with the plaintiffs and said the new language in the gutted bill reset the three-readings requirement.

To avoid creating confusion about what kind of amendments would fall into this unconstitutional category, the court also created a “germaneness” standard for future bills. Put simply, this means that any new amendments must be germane to previous versions of the bill.

The court clarified that the decision does not apply retroactively; laws already passed via “gut and replace” are not affected by this decision, except for the law at issue in this case. But the decision will prevent the practice in the future.

Of course, we must still be on the alert for legislative shenanigans. Frankenbills like HB58, which started as a tax bill and grew to include more taxes, may be able to slip through the germaneness test. But overall, this new court decision is a great victory for transparency and accountability in Hawaii.

For that, I especially want to thank our fellow watchdog groups: the League of Women Voters, Common Cause and the Civil Beat Law Center. Their work has helped preserve the Hawaii Constitution and ensure that the people of Hawaii have a more robust voice in the legislative process.