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The Honolulu Advertiser
Posted on: Wednesday, March 14, 2007

Legislature needs flexibility to do the people's work

By Rep. Calvin Say

On March 14, 2006, the Kaloko Dam breached, killing seven people, causing major flooding and damage on Kaua'i, and severely hurting Kaua'i's farmers, who lost irrigation water. The people of Kaua'i needed help from the Legislature immediately. We waived the 48-hour notice requirement so that the emergency appropriation bill for the victims of the flooding could be heard in the Finance Committee and quickly pass both House and Senate.

This is an extreme example, but there are many instances in the 60-day legislative session where time is of the essence, and good bills might die if the Legislature did not have the flexibility to act. This is why the Legislature, under our State Constitution, is given the authority to operate under its own rules.

In 60 days, members of the Legislature annually introduce approximately 4,000 bills and resolutions, and hundreds are selected to go through arduous rounds of public hearings. The great majority of bills, and subsequent drafts, are provided to the public for review 48 hours before public hearing.

Given the sheer volume of bills, it is sometimes necessary for a committee chair to request a waiver of the 48-hour notice to keep a bill alive. The request is made in public, and it is my responsibility as speaker to ensure that the chair has a good reason for the waiver.

The Constitution is clear, however, that the Legislature must abide by the spirit of the Sunshine Law and conduct all decisionmaking in open meetings Therefore, while the Legislature may not be technically under Chapter 92, the Sunshine Law statute, it abides by sunshine under House and Senate rules, and conforms to the same "open meeting" purpose of the law under the State Constitution.

Another reason it is impractical for the Legislature to operate under Chapter 92 is that, unlike the county councils or the state and county administrations, the Legislature is divided by political party, and the majority and the minority of each chamber must reserve the right to caucus and discuss the positions of their party in private. All decisionmaking and voting must be open to the public.

What would happen if the Legislature were to amend the Sunshine Law to include itself?

The legislative process and pace would be considerably slower, and the amount of legislation passed would be significantly less. The Legislature has too many issues to tackle during the 60-day session. Advocates for placing the Legislature under the Sunshine Law have recommended that to maintain productivity, the Legislature become full time and operate year-round. That would mean an approximate increase of $40 million for the taxpayers, and I do not support that option.

The framers of both the Constitution and the Sunshine Law saw the wisdom in carving out the Legislature in order to benefit the people and the process. Chapter 92-10, Hawai'i Revised Statutes, is the section of the Sunshine Law that recognizes the Legislature's need to operate under its own rules and procedures.

The statute and the Constitution are consistent, and I interpret both as offering instruction for the Legislature to balance the public's right to know with the flexibility required to conduct its business in order to best serve the people.

In the spirit of Sunshine Week, I urge lawmakers to keep an open mind, and if there is a way to amend the law that would still provide the Legislature with the flexibility required to do the people's work efficiently, we should consider it. The media can play a larger role in opening government to a greater number of people by devoting more resources, air time and column inches to covering the Legislature and government more fully.

Rep. Calvin Say is speaker of the state House of Representatives. He wrote this commentary for The Advertiser.