Emergency powers reform tops ‘veto list’ discussion

by Grassroot Institute of Hawaii, July 6, 2022

Reform of Hawaii’s emergency powers law dominated a discussion intended to be a review of bills from the 2022 legislative session that Gov. David Ige has said he intends to veto.

Keli‘i Akina, president and CEO of the Grassroot Institute of Hawaii, joined radio host Johnny Miro of the H. Hawaii Media network of Oahu radio stations on Sunday, July 2, to talk about the veto list, but most of the conversation focused on SB3089, which would reform the state’s emergency-powers statute.

“No one person should be the one who has all the power… to make decisions during an emergency,” Akina said during the 18-minute interview.

Ige’s announced intent to veto the bill, he said, was “very surprising” — and disappointing.

“He plans to veto a bill that would restore the balance of powers and create a check on the governor’s unlimited powers in an emergency. The reason we think that’s disappointing, Johnny, is because it’s very important to hold the government accountable.

“We aren’t surprised that the governor is reluctant to let go of some of the powers that he has,” he continued. “But we would argue that the balance of powers between the different branches of the government is important.”

Other bills Akina and Miro discussed that Ige said he intends to veto included HB1147, the last-minute “gut and replace” effort to fund the Hawaii Tourism Authority, which the institute has denounced; and SB3252, a bill that would cap fees for open-records requests and strengthen the waiver for requests in the public interest, which the institute has supported.

  *   *   *   *   *

TRANSCRIPT:

7-2-2022 Keli’i Akina with Johnny Miro on H. Hawaii Radio

Johnny Miro: Good Sunday morning to you. This is Johnny Miro. It’s time for our H. Hawaii Media radio stations here on Oahu Sunday morning public access programming.

We have six, and it’s Oldies 101.1, 101.5 FM, 97.1 FM, 107.5 FM, 103.9 FM and 96.7 FM, as we head into, of course, an Independence Day, 4th of July holiday weekend throughout the USA and here in Hawaii.

I’m glad to have once again joining us from Grassroot Institute of Hawaii and their great website, very informational, topical, grassrootinstitute.org will be the president and CEO Keli’i Akina. Good morning to you. A good Sunday morning to you.

Keli’i Akina: Well, good morning to you, Johnny. Glad to be with you and your listeners this morning, especially on a 4th of July weekend. We’re looking forward to celebrating the freedoms of our country.

Miro: Indeed, we are. All right. Gov. Ige had a list, an intent-to-veto list, that was just publicized, put out in the papers. But when he does release that list? Does it necessarily mean that he is definitely going to veto them?

Akina: Well, not necessarily, Johnny. As you know, one of the governor’s most powerful tools is the veto. He can veto a bill passed by the Legislature.

Now, that can be a very good thing if there happens to be a bad bill that got its way through the legislative session. But there are some things that take a little more time for consideration, and we’d like to encourage the governor to change his mind on at least a couple of bills that he may veto.

Miro: Does he have a deadline to veto the bills? Is there a set deadline?

Akina: Yes, there is a set deadline. He has until July 12th to veto any bills that are on his list. But remember, he can change his mind if he wants to, and he doesn’t have to veto the bills that he has put forth on that list.

Miro: Seems like he has quite a few he’s considering. What are some of the other bills that he plans to veto?

Akina: Well, there are 30 bills in total on his list, and that’s a huge number. This includes a few surprises and the potential for some controversy.

Gov. Ige, for example, has given notice that he intends to veto the budget. He’s probably not going to veto the whole budget. He’s going to veto some line items. But that’s a very important bill.

He’s also planning to veto that last-minute “gut and replace” effort to fund the Hawaii Tourism Authority, and that’s HB1147. And he plans to veto a bill that would cap fees for open-records requests and strengthen the waiver for requests in the public interest, and that’s SB3252.

Miro: Why do you think that would be disappointing, that he would be vetoing that?

Akina: We actually are most concerned about SB3089. And that was very surprising to us. He plans to veto a bill that would restore the balance of powers and create a check on the governor’s unlimited powers in an emergency.

The reason we think that’s disappointing, Johnny, is because it’s very important to hold the government accountable. No one person should be the one who has all the power — not even during an emergency.

That’s why it’s important to set up checks and balances, so that people have the capacity to appeal to any one person making the decisions. Throughout the COVID-19 lockdowns, we learned that Hawaii’s law gives the governor nearly unlimited and unchecked emergency powers.

And so that’s why we advocated that the Legislature should have oversight over those emergency powers — not to prevent the governor from declaring and giving leadership during an emergency, but to be a check and a balance. Which is the way the Constitution works.

Miro: And did he explain why he intends to veto the bill?

Akina: Let me first talk a bit more about the bill. SB3089 clarified that the powers exercised by the governor under the emergency-management statute must be consistent with the Hawaii Constitution.

That’s the most important thing about the bill. It restores the balance of power. It also requires a justification for the suspension of laws. There can’t be just a random suspension of laws, and it allows the Legislature to terminate an emergency in whole or in part by a two-thirds vote.

So that’s important. It’s not just a majority. If two-thirds of our legislators think that the emergency should be modified or called off, they have the right to do that.

Finally, the bill addressed the confusion about the current statute’s automatic 60-day termination clause, by allowing the governor to extend and re-declare the emergency. And that lets an emergency be almost indeterminable.

As you asked, why is the governor intending to veto this bill? Well, he claims that it will limit his ability to determine the duration of an emergency, and thereby limit his ability to provide per health and safety.

We don’t think that’s the case. He also expressed concern that terminating an emergency prematurely would interfere with the ability to get federal funds and assistance.

He said that ending an emergency too early could also prevent counties from being able to take advantage of the emergency provisions. So those were his reasons. But we actually have responded to his objections.

Miro: How would you respond to some of the objections to the bill? Can you go through that?

Akina: Well, we aren’t totally surprised that the governor is reluctant to let go of some of the powers that he has. But we would argue that the balance of powers between the different branches of the government is important.

The governor — or any governor — is not closely connected to the people on the ground in Hawaii. Any governor is far removed from the day-to-day consequences of their actions. And we saw that throughout the previous two years. That’s why it’s important to keep that power in check.

You see, the government is essentially arguing that no one should have the power to question the governor’s actions in an emergency. But that’s not the way a democracy works. It’s not a democratic republic.

So his explanation only confirms to us how important it is to restore the balance of powers and create a legislative check on the governor’s emergency powers.

Miro: Yeah, I know there were maybe a handful of states that reined this power in, put a check on the governor. So what are the other reasons there for passing this bill?

Akina: Johnny, right now, Hawaii’s emergency-power statute doesn’t provide clarity over when exactly an emergency ends, and how to achieve that. This bill brings that clarity.

Also, many other states, as you mentioned, passed similar reforms over the past two years. So this is the kind of bill that many other states have agreed is necessary. And we should always be looking for best practices.

Miro: Does it go too far, this bill? Does it require the Legislature to end the emergency at a certain time?

Akina: Well, actually, the bill is very moderate in its approach. It could have been stronger, but our legislators felt that a moderate approach was the way to go. It does not require the Legislature to terminate an emergency. It just empowers them — if two-thirds of them believe they should do so. And that’s very important — achieving two-thirds — because that prevents the calling off of an emergency in a whim.

Now, there’s no reason to believe that they would terminate an emergency while a danger to health and safety still existed. That’s why legislative debate exists, and why the bill requires a super majority to end the emergency.

As for concerns about federal aid, the bill actually allows the Legislature to end an emergency “in part.” It could still keep us in emergency mode for the purposes of federal aid while restoring the normal balance of powers.

Miro: All right. Is there still a chance, maybe, to reform the governor’s emergency powers? And what can be done?

Akina: Well, remember, he has until July 12th to make a final decision. So he could still change his mind. If Gov. Ige cannot be persuaded to change his mind on vetoing SB3089, then the Legislature could be called on to override his veto.

Grassroot Institute has a website and a page that lets people contact their legislators and ask them to take action to override the governor’s veto of the emergency-powers bill. So if anyone listening out there wants to communicate to the governor about overriding this veto, then just go to our website, grassrootinstitute.org.

Miro: Do you get a sense of what the people’s take is on if there is too much power within the governor during an emergency? Where do you think the people sit on this right now?

Akina: Oh, there’s an overwhelming number of citizens here in the state who are concerned about the duration of the pandemic emergency that the governor had instituted. They’re also concerned about the arbitrary rules that were in place, and so forth. We’re responding to them, and many of them are actually calling upon their legislators and the governor to call for a special session to have a veto override.

Miro: What would happen if he does veto the budget?

Akina: Well, the governor is probably not going to veto the entire budget. That wouldn’t be practical. He actually said he’s only going to do a line-item veto about specific items.

Miro: He also said he intends to veto a bill, I guess, that would fund the Hawaii Tourism Authority. Now, this had a lot of press recently. First, what is the Hawaii Tourism Authority, and why would he cut those funds?

Akina: Johnny, that’s a good question. The HTA — Hawaii Tourism Authority — was created in 1998 as a way to promote tourism in Hawaii.

Now, of course, the tourism industry is absolutely crucial to our Hawaii economy. But that doesn’t necessarily mean that the government should be the one running it, or the government should be involved in spending taxpayer dollars to the tune of tens of millions a year to promote it.

We believe that the market is a great tool for being able to generate tourism interest in Hawaii and being able to sell Hawaii.

Now, there was a battle at the Legislature this year over whether or not to fund the HTA. And the result was a bill that was cobbled together at the very last minute through a dubious process we hoped we would no longer see, called gut-and-replace.

Miro: OK. What is gut-and-replace? We keep hearing that from time to time. What is it, and how does that work?

Akina: Well, gut-and-replace used to happen quite frequently at the end of a legislative session, after the bill had gone through all the hearings and public testimony on it, and so forth. Then the bill would get gutted in the final moments and replaced with a completely different bill. And that would be done behind the scenes where the public couldn’t see that happen.

Now, that’s exactly what happened with the HTA funding bill. And the state Supreme Court had previously ruled it unconstitutional last year. But lawmakers decided to go ahead and treat this bill that way anyway.

Miro: Talking with Keli’i Akina, president and CEO of Grassroot Institute of Hawaii. Their website available to everyone at www.grassrootinstitute.org.

What was the bill before it was so-called gutted and replaced?

Akina: Well, HB1147 was introduced originally in 2021 as a quote “capital improvements bill.” When two other bills that appropriated money to HTA failed, the conference committee grabbed this capital improvements bill, gutted the contents out, and added a handful of other appropriations, including $60 million for the HTA.

So the fact that HTA funding came through at the last minute via an unconstitutional gut-and-replace mechanism reflects the fact that policymakers are still debating how the HTA should be funded, or function, in the future. And it’s too early to call this the end of the HTA.

In his remarks on the veto, Gov. Ige stated that he’s looking for other ways to keep the HTA operating without making it vulnerable to a court challenge.

Miro: And you also mentioned at the top that there’s a veto of an open-records bill possibility. Why is that bill important?

Akina: It’s about transparency, which is very important in creating a government that is honest with the people. Hawaii has a law which allows the public to access government records for inspection. And that’s what the media uses as well — that law to be able to put things out into the public — because it is, after all, the government of the people.

This open-records law has a cost, though. Government agencies in Hawaii can tack on enormous fees, such as for reproducing the records, photocopying and so forth. This can be used as a way to block public record requests.

The bill we’re talking about put a cap on those fees. And it even allowed certain public records requests to have the fees completely waived in the public interest. That was done in order to make government more transparent and records more accessible to the people.

Miro: And let’s see, are there any other maybe significant vetoes that have been overshadowed by the news about the budget bill that we haven’t touched on?

Akina: Well, there was a bill, HB1567, that would end the use of cash bail for most nonviolent misdemeanors and some nonviolent Class C felonies. But there was a public outcry against this bill. There was even a public petition to veto the bill, and some elected officials — like Mayor Blangiardi — joined in urging the veto. Gov. Ige said he was concerned about the risk of this to public safety.

Miro: All the mayors joined in on that. Now the governor has submitted his intent to veto, the veto list. What happens next?

Akina: Well, now that the governor has signed or signaled his intent to veto, the next step is for him, actually, to implement vetoes. Gov. Ige has until July 12th to deliver the veto of any bill.

And once a bill is vetoed, it will not become law unless the Legislature meets in a special session and overrides the veto with a two-thirds vote in chamber.

It’s not an easy thing to call the Legislature back into session and then get two-thirds votes in order to override a veto. It would take quite a bit of political will on the part of the Legislature to do so.

We’re hoping that, if necessary, with regard to some bills, that they will exercise that political will, and that people will call upon their legislators to consider that.

Miro: Does that normally happen with a governor in his first term heading into a second term? Or does it have more of a possibility of them coming back into a session with a two-term governor on the way out?

Akina: It could go either way, Johnny. What really matters is the political will and passion of the legislators about the bills that are being considered.

Miro: OK. All right. How can people take action and contact their legislators about overriding a specific veto or a lot of vetoes?

Akina: Anyone can find their legislator’s contact information online and try to contact them. In fact, we at Grassroot Institute have made an easy way to do that. So that if you’re listening today, you can easily identify and contact your legislator using our website at grassrootinstitute.org. That’s Grassroot, not Grassroots, but grassrootinstitute.org.

So if you want to tell your legislators to override the governor’s veto on the emergency-powers reform bill, you can do that in just a few clicks on the website. We hope people will do that, because it’s important to hold the governor’s emergency powers in check. Just go to Grassroot Institute’s website, grassrootinstitute.org, and click on “Take Action.” That will lead you to a page that helps you write and send a unique message from you — not a form letter — about your feelings on SB3089.

Miro: Any closing thoughts this morning as we wrap up our conversation about the governor’s veto list?

Akina: I just appreciate so much being able to talk a bit about the process. It is hard for most of us in the public to understand what goes on in the forming of our bills that become laws.

And I really commend those listeners today who are following and understand that even after the Legislature has sent some bills that they believe should be passed to the governor, that sometimes the governor decides not to do that, and the Legislature still has the right to override that and pass those bills into law.

And so I hope people will get involved, contact their Legislature, go to the grassrootinstitute.org website, and we’ll provide all the help we can so that you can be involved.

Miro: Keli’i Akina, the president and CEO of Grassroot Institute of Hawaii, appreciate you joining the conversation this morning for our listeners at the H. Hawaii Media radio stations on the island of Oahu. Have a fantastic celebration of Independence Day here in Hawaii, and mahalo for joining us

Akina: Aloha.

Miro: The views and opinions expressed in this public access programming do not necessarily represent those of H. Hawaii Media’s family radio stations.

You’ve been listening to Sunday morning public access programming on the H. Hawaii Media family radio stations on Oahu. Mahalo for listening to this H. Hawaii Media radio station. Have a great day.