Reform-Minded Legislators Have Plenty Of Weapons — They’re Called Rules

“Many legislators don’t understand the power they actually have.”

So said the dean of the Hawaii Legislature, Sen. Les Ihara, last April.

If true reform is going to come to a Capitol run by entrenched powerbrokers behind closed doors, the state’s rank-and-file lawmakers need to take Ihara’s observation to heart.

And then they’ll need the courage to wield that power when they convene in January.

It’s easy to get lulled into accepting the inevitability of the top-down status quo at the Legislature: Committee chairs, especially the powerful money chairs, run the show, answerable to the Senate president and House speaker who appoint them.

The fact is, existing rules in the House and Senate equip legislators with the tools necessary to shake things up. All they need in many cases are majorities on the chamber floors and in committee hearing rooms. And there are a lot more lawmakers on the lower tiers than the upper tiers of the current power structure.

Among the weapons in their arsenal:

• The ability to elect new leaders.
• The ability to challenge the rulings of committee chairs.
• The ability to change how sessions end, first by insisting that specific appropriation amounts appear in bills before the hectic final hours of conference committees, and then by being willing to extend regular sessions and call special sessions if the people’s work isn’t truly finished.

Taking It From The Top

Each chamber has its own set of rules, but they are often similar — including what happens at the session’s outset.

Since the next session starting Jan. 17 is the second of the biennium, there won’t automatically be elections for the crucial positions of House speaker and Senate president — that’s not on the calendar again until January 2025. But the fact is, a simple majority vote at any time is all that’s needed to change leaders.

That hasn’t happened since 2017 in the House when Scott Saiki ascended to the speakership after the resignation of Joe Souki. In the Senate, Ron Kouchi ousted Donna Mercado Kim as the 2015 session ended.

Nobody is looking to replicate the current chaos of the Republican-controlled U.S. House, where the fate of speakers rests with an extremist faction. But a little more suspense about who gets to run the show in the Hawaii Legislature would be welcome.

Indeed, the rules governing the opening day of a biennium’s first session (odd-numbered years) lay out a quaint agenda befitting a citizens’ legislature:

Ignorance of the rules is no excuse for silent acquiescence by elected officials.

The chambers officially convene with no House speaker or Senate president. Instead, they are chaired by legislators from House District 1 and Senate District 1, who assign committees to “wait upon” justices to administer oaths of office. In the House, representatives can technically park themselves at any desk they want until they elect leaders who then assign seating as if it’s the first day of school.

In reality, legislators arrive on opening day knowing full well where they’ll be sitting and who is expected to be elected Senate president and House speaker. But again, it only takes simple majorities — 13 senators or 26 representatives — to overturn that grand design.

If that happened at the beginning of any session, suddenly new leaders would be appointing committee members and choosing where to refer proposed bills.

Challenging The Chairs

Watch a committee hearing and you’d never guess that the chairs are not all-powerful. They hog the lines and seemingly make all the decisions about the bills in their purview, from recommending amendments to deferring measures. Often the actions conclude with a line such as “hearing no objection.”

For that matter, the chairs decide whether a bill will get a public hearing in the first place. If they choose not to they could be challenged. They just aren’t.

Committee members are generally expected to fall into line by “voting with the chair” — and they often don’t vote at all if the recommendation is to defer a measure. That’s a shame, because while deferrals don’t officially kill bills, the result is almost always no further action on a measure.

“I don’t think chairs have dictatorial powers, at least not by the rules,” Ihara said in April. “For example, a Senate rule requires a chair to hear a bill if a majority of committee members request it … Last month, I asked to vote on a bill the chair wanted to defer.”

Even if the right of a committee member to make a motion or call for a vote isn’t spelled out in the rules, both the Senate and House generally follow Mason’s Manual of Legislative Procedure.

“Mason’s allows a chair to defer voting on a bill, (but only) by unanimous consent,” Ihara said. “Oh, by the way, the chair does not have to ask for unanimous consent, just have no one object to the chair’s action, because it is presumed that members know the rules.”

A lot of good legislation dies in the 11th-hour confusion, and it doesn’t have to be that way.

Brian Takeshita has worked in the House for nearly three decades and has been the House clerk since 2013. He can’t recall a single time when a committee chair has been challenged on a recommendation to defer a measure in that chamber. 

“That deferral is not a vote, it’s basically just a chair’s decision,” Takeshita said. “There are plenty of hearings that go on every year, but I have not heard of a situation where somebody proposed a motion to have the chair hold a vote” on their deferral recommendation.

Early last session, two high-profile reform measures proposing legislative term limits and establishment of a citizens’ “Bill of Rights” were immediately deferred after public hearings without committee votes.

“Some members don’t know that they could challenge a chair’s action,” Ihara said.

But ignorance of the rules is no excuse for silent acquiescence by elected officials, especially when there are people like Takeshita and Senate Clerk Carol Taniguchi available for guidance.

“Once in awhile people ask, and we will give them our best advice,” said Taniguchi, who has held her Senate post since 2007.

Rewriting Those All-Too-Familiar Endings

Every legislative session seems to wrap up with a mad rush toward adjournment.

Bills passed with differing versions in the House and Senate pile up in conference committees that can’t possibly deal with them all in the time allotted. Many spending measures arrive with no specific appropriation amounts, still dependent on the money chairs to fill in the blanks — if they get around to it.

A lot of good legislation dies in the 11th-hour confusion, and it doesn’t have to be that way.

First of all, rules in both chambers call for the chairs of subject committees and money committees to consult early and often about those spending bills to determine what resources are available and what appropriation amounts they should contain.

If lawmakers insisted those rules were followed, there’d be a lot less legislation at the mercy of the money chairs at crunch time and a lot more clarity about the state’s overall spending plan.

One member of the House Finance Committee, freshman Rep. Elle Cochran, said in May the system seems designed for maximum chaos.

“Every single thing that any department gave a dollar amount on was just taken out to zero,” Cochran said. “And it was understood that the numbers would be hashed out during conference committee.”

The ultimate rule in the toolbox for legislators dissatisfied with how a session is wrapping up allows them to extend it.

During that period, “A very few people are given veto power over almost all bills, in defiance of the principles of representative democracy,” said former Sen. Russell Ruderman in an April opinion piece for Civil Beat.

Asked how closely the rules requiring earlier collaboration on money measures are actually followed, House and Senate clerks Takeshita and Taniguchi declined to comment.

The ultimate rule in the toolbox for legislators dissatisfied with how a session is wrapping up allows them to extend it.

This can be accomplished with two-third’s support of both House and Senate members. It hasn’t happened since 2009, but considering the discontent that surfaced just before adjournment last May, the option shouldn’t be forgotten by rank-and-file legislators who feel unjustifiably rushed during conference committees.

With that same two-third’s support in both chambers, legislators can also force the calling of a special session. That last happened in 2017, and before that you have to go all the way back to 1991.

Most special sessions are called by the governor, Takeshita said. But again, bringing true reform to the Legislature will require lawmakers to become more answerable to their constituents and less beholden to the current leaders of state government.

One of the most important rules of the House and Senate is that the rules can be changed with simple majority votes in either chamber. To read the rules, click here for the House, and click here for the Senate.

Whether they involve rule changes or new bills, we’d like to hear what other possible reforms you think would improve how the Legislature conducts the public’s business. Send your ideas to sunshine@civilbeat.org.