By: Jake Bookwalter, Vice President, Legislative Information Services
On August 5, the Supreme Court of Hawaii heard arguments surrounding the Legislature’s notorious “gut and replace” practice. Gut and replace— known as “gut and amend” in other states— is the practice in which the content of a bill is removed and replaced with new (and often unrelated) language. Bills that are amended through this process are often pushed through the legislature by circumventing the committee process, but also veiling it - so that opposition cannot be easily mobilized. The plaintiffs, Common Cause and the League of Women Voters, argued that the practice violates Hawaii’s state constitution, which requires a bill to clear three separate readings, and it deprives the public of meaningful involvement in the process.
The Hawaii lawsuit seeks to have the 2018 Act 84 — that began as a proposal on recidivism rates, but then evolved as a law related to hurricane shelters— ruled as unconstitutional and the practice of gutting and replacing legislation curbed. Governor David Ige’s (D) Administration and the Hawaii Legislature argued that the courts should not interfere with a political issue that would be more appropriately resolved through the election process.
While Common Cause Hawaii and the League of Women Voters of Honolulu have tried to draw attention to this practice for the past several years, and have been met with resistance from the Legislature, this practice is not exclusive to Hawaii. For example, California SB 384 was introduced in February 2017 as the Last Call Bill, permitting the Department of Alcohol Beverage Control (ABC) to extend bar and restaurant closing time from 2:00 AM to 4:00 AM. When SB 384 came to the Assembly Floor on September 7, 2017, it was stripped of all alcohol sales language and was replaced with the Penal Code and Sex Offenders Registration Act, legislative language that had previously been killed in committee months earlier.
While it is unlikely that Hawaii’s Supreme Court will inject itself into the legislative process, the consequences of this case, could open the door for government transparency advocates to challenge similar practices in other states.
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Jake Bookwalter provides our clients with legislative intelligence, strategic planning and information on key political trends. As Vice President, Legislative Information Services, he manages Stateside’s Legislative Monitoring practice, including the four legislative teams, who provide the issue intelligence and customized summaries for our clients. Complete bio here.