Bills About Nothing: Why Hawaii Legislators Write Measures With No Text

Jan 31, 2020

A close look at the more than 2,000 bills under consideration at the Hawaii State Capitol reveals that some of those proposals don’t contain any language.

They’re called short-form bills, and while a law about nothing may sound more like a Seinfeld episode than real life, Maui state Sen. J. Kalani English says they exist for good reason.

"These are placeholders, because often during the session there's ideas that come in after the deadline,” English said in an interview.

Hawaii’s legislative session is only 60 working days. Once lawmakers are gaveled in, they only have a few days to introduce all of their proposals. After that, no new measures can be submitted until next year’s session.

Sen. English says sometimes an urgent need, like responding to a natural disaster, arises after that deadline has passed. That was the case in 2018, when portions of Kauai and Oahu were hit by devastating flooding part way through the legislative session.

English said lawmakers used an existing, blank short-form bill to approve $125 million in flood-related relief.

There are some rules for how short-form bills can be used. The title of any law cannot be changed once it has been introduced. The ultimate purpose of the law must relate to that title.

Since short-form bills are meant to cover unexpected eventualities, naming them is something of a guessing game. Lawmakers use vague titles like “Relating to the Environment” or “Taxation.”

Vague titles and inserted language may sound similar to the often lambasted legislative technique called gut and replace; a process in which lawmakers take a bill that has not secured the necessary votes to advance, copy the text from that bill into another measure that is still moving.

There are multiple lawsuits underway challenging the legality of gut and replace, although it was ruled constitutional by a judge last year.

While there are some similarities, short-form bills are distinct from gut and replace.

Sandy Ma, executive director of the good governance watchdog Common Cause Hawaii, is leading one of the court challenges. In an interview, she told HPR that short-form bills can serve a useful purpose, if they’re used transparently.

“We hope that when unexpected issues arise, we still get the requisite hearings. That’s what we need to fulfill the Hawaii Constitutional mandate,” she said.

The state constitution requires that all bills receive three readings in both legislative chambers. Rules in both the House and the Senate also require each measure have at least one public hearing in which interested community members, organizations and businesses can submit testimony.

Short-form bills take a slightly different path, but are held to the same standard as normally drafted measures.

Ma and Common Cause argue that floor readings do not always provide adequate transparency or public involvement, and they want the current requirement expanded to include more hearings. Their case against gut and replace is currently on appeal.

As for short-form bills, English says the rules holding them to the same standard as regular legislation has lessened their use over the years. 

“When I first started in 2000, they were used quite often. Now they’re used much less,” the fourth-term senator said. He added that it is actually easier for legislators to employ gut and replace than it is to use short-form bills.

The numbers back that up. More than 5,000 measures were introduced between the 2019 and 2020 legislative sessions. Short-form bills accounted for only around four percent of the total, and not all of those end up being used to pass a law.

So who says you can’t have a bill about nothing?