Chapter 4: The Legislative Process

It may seem strange to you that less than 10 years before this book was written, states, including Hawaiʻi, could and did deny marriage to same sex couples. A 1990 Hawaiʻi court case that rocked the nation was instrumental in starting the legal and social changes that ended with the 2015 United States Supreme Court decision in Obergefell v. Hodges,^[1], the landmark civil rights case in which the Court ruled that the fundamental right to marry is guaranteed to same-sex couples under the United States Constitution.

In 1990, a Honolulu civil rights activist, Bill Woods, arranged for three same sex couples to apply for marriage licenses at the state Department of Health (DOH), and, after being told that the license could not be granted under then-current Hawaiʻi law and that the DOH would need legal advice from the Attorney General.^[2] The Attorney General advised the DOH that it was correct in not issuing the licenses to gay couples, and the couples received a formal notice of rejection.  Their attorney filed a civil action asking that the licenses be issued, citing both the right to privacy and the equal protections section of the Hawaiʻi Constitution, which was denied, so they appealed to the Hawaiʻi Supreme Court.^[3].

In a plurality^[4] opinion written by Justice Steven Levinson, the Hawaiʻi Supreme Court reviewed each of these constitutional grounds separately. In terms of the constitutional right to privacy, the plurality held that “the applicant couples do not have a fundamental constitutional right to same-sex marriage arising out of the right to privacy or otherwise”^[5]. However, in response to the second ground, the plurality found that the marriage law discriminated on the basis of sex, and would therefore subject to “strict scrutiny” under an equal protection analysis. So the court held that the case should be remanded (sent back down to the trial court for an additional hearing) in which the Director of Health would have the burden of “overcom[ing] the presumption that HRS § 572-1 is unconstitutional by demonstrating that it furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights.”^[6] this was actually a big win for advocates of same-sex marriage, as it means the state couldn’t just brush off these couples’ applications but needed to justify them at a high level.

In 1998, Hawaiʻi voters amended the State Constitution to allow the Legislature to ban marriage between same-sex couples, which nullified the impact of the Baehr case, but the subsequent fallout at the federal and state levels continued to roll.  This included the 1996 passage of the Defense of Marriage Act (DOMA).^[7], which defined marriage as the union of one man and one woman, allowing allowed individual states to not recognize same-sex marriages that were performed and recognized under other states’ laws. States fractured on handling same sex marriage, with some prohibiting it, some offering an alternative, such as domestic partnerships, and others adopting same sex marriage through either their courts or their legislatures. Massachusetts was the first state to approve same-sex marriage in 2003.^[8]”

So prior to mid-2013, the decision on whether or not to permit gay couples to marry was left up to each state and there was a patchwork of policies across the nation. Hawaiʻi became one of the states that made a partial step toward recognizing same-sex unions in 1997 by allowing couples to enter into a “domestic partnership” which gave them some, but far from all, of the benefits of marriage.^[9]

But in 2013, a United States Supreme Court case, United States v. Windsor, held that DOMA violated the 5th Amendment’s due process and equal protection principles. With DOMA removed at the federal level as of June 23, 2013, the Hawaiʻi Legislature took action. Each Hawaiʻi legislative session is limited to 60 working days, starting on the third Wednesday of January, so the 2013 legislative session was over by the time the Windsor case was announced in June. However, the Hawaiʻi governor, Neil Abercrombie, and the Hawaiʻi  Legislature decided not to delay taking action until the 2014 session. The Governor released his first proposed draft of a same sex marriage bill in August and legislators received and reviewed numerous comments and drafts of the measure and sought input and assistance from various state and public entities. The Governor exercised his constitutional power to call the legislature into special session starting October 28, 2013.^[10]On October 22, Senator Brickwood Galuteria announced the introduction of Senate Bill 1 to “to recognize marriages between individuals of the same gender in Hawaii”^[11] and  the text of the bill was released to the public so that people could prepare to testify. The bill was formally introduced on October 28, there was a vote by the whole Senate to accept it, and then the Senate leadership assigned it to one of the subject matter committees, the Senate Judiciary and Labor committee, to hold the public hearing.

The Senate Judicial and Labor Committee received written testimony from over 3300 agencies, unions, churches, and individuals. More than 1800 people showed up to testify in person, and even broken down into 1-2 minutes per testifier, the hearing started at 10 am and lasted almost 12 hours.^[12]  A majority of members of the committee voted in favor of the bill and sent it on to the whole Senate, which voted to approve it and pass it on to the House.^[13]

Public fervor on both sides of the issue was stirred up, and the second required hearing before the  House joint Judiciary and Finance committees received over 23,000 pieces of written testimony, with over 5000 individuals registered to testify in person for its October 31 hearing.^[14] In a truly heroic and unprecedented effort, the House committees held hearings on the following Thursday, Friday, Saturday, Monday, and Tuesday for a combined 55 hours of testimony.^[15] Ultimately, the House kept the same-sex marriage provisions, but acknowledged concerns by some testifiers by adding some minor changes to the religious exemptions and made some other housekeeping changes.^[16] Because the Hawaiʻi Constitution requires both chambers to vote on the same version of the bill, this amended bill, Senate Bill 1, House Draft 1, had to go back to the Senate for a final reading and vote. The amended version was approved by the Senate on November 12 and the Governor signed it into law on November 13.^[17] Governor Abercrombie said that he was going to give the koa pen that he used to sign the law to Justice Steven Levinson, the justice who authored the original Baehr v. Lewin opinion twenty years earlier.^[18]

So what can we glean from this story?

First, there is a legislative process, and it starts out with a draft document called a bill that is introduced by a Senator or a Representative (even though the governor started the ball rolling with his drafts, it was not until members of the legislature introduced it that the bill could be introduced into the special session). The bill is assigned to a committee, which does the heavy lifting – the holding of a public hearing and the creation of a response. You should note that a bill can be amended, or sent through without change. There’s also a third option, which we will cover below

This bill had a truly extraordinary amount of written and oral testimony, and the takeaway here is that the public has an important role to play in providing input to the legislature, so the committee can make appropriate changes to the legislation, called amendments. If they have concerns, members of the public can submit either written testimony, oral testimony, or both.

You should also note that after the House made changes to the bill, the bill had to go back to the Senate, which needed to approve those changes. This is an important part of the legislative process that we’re going to discuss in more detail below.

“Visit” the State Capitol by clicking on this interactive map!

Put your cursor on the map and drag it around and up and down. Click on the plus button for more information.

How is each chamber of the legislature organized?

The Hawaiʻi Legislature is designated as part time by the State Constitution, which specifically provides that “The legislature shall convene annually in regular session at 10:00 o’clock a.m. on the third Wednesday in January” (referred to as “Opening Day”) and that each regular session “shall be limited to a period of sixty days,” although a session may be extended up to an additional 15 days.^[19] However, as set out last chapter, each year the legislature introduces around 2500 bills or more.  How can all of those bills (or even a substantial portion) be handled in only 60 days?

The only way the workload can be handled is if the legislature is extremely organized, with strict deadlines. I’m going to walk you through that process, because sometimes the public is frustrated at the relatively short notices and the absolute deadlines, but once you go through this chapter, you will see that the only way that the legislature could do its job is through this level of precision.

So let’s go back to an individual chamber, starting with the Senate to see how they are organized to get through a truly amazing amount of bills in such a short time.

Bill Basics

A bill must go through three votes of the full chamber under the State Constitution. The photo above is a picture of the Hawaiʻi State House of Representatives, with the head of the House, the Speaker of the House, sitting in the long table on the center right, and the individual representatives seated at the curving tables. The Senate chamber looks similar, except that it is in blue rather than red, and there are half as many seats for the senators, as there are only 25 of them. You can see a photo of this in the virtual tour, above.

In the photo above, you are seeing the representatives at one of their regular daily sessions, where they would do things such as vote on bills. These full votes are called “readings,” which is a bit misleading. The “first reading” occurs when bills have been introduced and hundreds if not a thousand or more bills appear on the House or Senate’s daily agenda for a first reading vote. It is literally impossible for the legislators to read all the bills before they need to be referred out to the subject matter committees. Therefore, the “first reading” vote is pro forma: everyone votes yes on all of the bills just so they can start to be referred to committees. Then one or more committees holds its hearing, which is described in more detail below. At this level, the bill can be passed through as is, amended, or “held” by the committee, which means that in general it will not progress further in the session and will virtually die.

After the committee hearing, a bill that passes out of the committee, either as is or amended, heads back to the full chamber for a vote called the “second reading.” In general there are no changes made during the “second reading,” which is a formality after the first committee hearing. If one or more additional committees are assigned to the bill, the bill would go to those committees for another hearing, and then head back to the full chamber for the “third reading.” If any changes are to be made by the whole legislature as a body, that would come through floor amendments in the third reading, but these are very rare.  Most of the time the legislators defer to the subject matter committees’ decisions on what specific provisions in the bill should be.

So the real work of the legislature is done by the subject matter committees. These are committees set up by each house of the legislature to cover related (and sometimes not so related) topics.  The Senate President appoints the chair, vice chair, and members of each Standing Committee.  In the House, the Speaker of the House carries out the same function.

You will see in the photo an actual WAM committee hearing. You’ll see that in comparison to the photo of the chamber above, the hearing room is much less impressive, the group is much smaller, and the atmosphere is less formal.

The House and the Senate are not required to have the same committees, and in fact they can differ substantially because the Senate typically has fewer committees as it has fewer members to spread around. Here are two screenshots, one of the Senate’s rule 16, and the other of the House’s rule 12^[20], describing their first three committees, showing their different names and functions.

You can see a difference in the very first committee, where the Senate title encompasses agriculture and the environment, and has a much broader scope, including environmental protection and even littering, while the House’s first committee is simply the Committee on Agriculture which is restricted to dealing with issues involving crop and livestock production. The House does have a committee to handle issues relating to the environment, but those are under their Committee on Energy & Environmental Protection.

Why does knowing the committee coverage matter? We’ll cover this in more detail when we talk about how you can have an impact on the bills, but in short, if you’re going to lobby to suppress or support a bill, you need to know who the chairs and the committee members are. Spending time to convince a legislator who is on the health committee to make a change on a tax bill is largely a waste of your time.

These important committee referrals can be to one, two, or less frequently, three or more committees, and are made by the majority leadership in the Senate and the Speaker in the House^[21]. As you’ll see in the diagram below, there are two time periods in which a bill can be heard by a specific chamber’s committees during its progress through that chamber. Look at the light blue boxes in particular:

As at least one committee hearing is required for a bill to pass a chamber, there will be at least one referral to a committee. If the subject matter, or topic, of the committee is very broad, there might be multiple subject matter committees assigned to a bill, and if the bill involves money, there was always one of the money committees in the legislature assigned to the bill, which are the Committee on Finance in the House, and Ways and Means (WAM) in the Senate.

While it is possible to fit in a third committee hearing right after the second committee hearing in the chart above, right before the third reading, usually there’s not enough time because of the strict time deadlines in the legislative calendar, so setting three separate committee hearings is often a signal from the House or Senate leadership that they do not approve the bill and they are fine with it not passing the legislature. Example: in 2021 the Senate introduced SB 257 on public land leases that was referred to two Senate committees and which passed them and was transmitted to the House. The House leadership referred the bill to four separate committees and the bill went nowhere. The first committee did not even want to spend its time holding a hearing when there was clear signaling through the number of referrals that the House leadership did not want this bill to pass.

A more reasonable step, if it truly looks as though three committees have subject matter jurisdiction over the bill, is to turn either the first or second committee hearings into a joint committee hearing, where the members of two committees meet at once to hear the same testimony on the bill. This is often done to ensure that there is enough time for the bill to meet the lateral deadline. You will see an example of that in the video below (5 min).

The subject matter committee (or joint committees) that receive the first referral will set a public hearing date for the bill, with at least 72 hours (three full days) notice in the Senate and 48 hours notice in the House^[22]. This is the point where you, whether as an individual or the representative of a group, can make a key difference by submitting testimony. More details about how to submit testimony are below, but for now just realize that you can submit written testimony, come to the hearing and submit oral testimony, or both.

After receiving written and oral testimony, the committee will recess (take a break) and discuss what they want to do with the bill. As described in the story above, the bill can be approved “as is,” without changes, as the Senate did in our story above, or can be amended, as the House did in our story above. A third option is for the committee to “hold” the bill, which means to not take a vote on it, so the bill remains in that committee and cannot proceed, and dies.

Assuming that the first committee either approves the bill as is or amends it, it will create a report, called a “standing committee report” which will describe to the full chamber what happened at the hearing and will list the changes it made, if any. If it did make changes, a draft is created and the bill gets a new number, with “Senate Draft” (“S. D.”) or “House Draft” (“H.D.”) added to the bill number. Watch the video below to find out how standing committee reports can be helpful to you.

After the committee passes the bill out, it will go back to the full chamber for the largely pro forma second reading and vote. As shown in the chart above, if there is a second (or third) committee hearing, that will fit in between the second reading and the third reading. If there is only one committee, there will be a standard pause of 48 hours, and then the bill will come back to the chamber for the third reading.

Floor amendments

There is an infrequently used but possible way to propose an amendment for a bill to the whole chamber, outside of the committee structure which is typically used to amend bills. In general, this happens after all of the committees have already met on the bill. As many bills have two or more committees, it typically comes during the third reading, but for a bill, as in the following example, that is referred to only one committee, it is possible to make this floor amendment at the second reading. Here are a couple of screenshots to illustrate this. The first is what the text above floor amendment looks like. Unlike a full draft, the floor amendment only contains the specific change requested. In this case, the floor amendment was made to add a later effective date – much later!

The status sheet will contain a link to the text of the floor amendment and whether it was adopted.

In that story that we discussed at the top of the chapter, the same-sex marriage bill, opponents introduced 9 floor amendments in the House’s Second Reading, and 16 floor amendments in the House’s Third Reading.

Each floor amendment was rejected.

The third reading, with any applicable floor amendments, must be completed before the “crossover deadline.” This is the deadline by which one chamber must be done with all of the activity for their own bills. Meeting this crossover deadline assures that the second chamber will have sufficient time to hear and amend the bill, just as the first chamber did.

So if a bill passes its third reading in the first chamber, it is still not done! After transfer to the second chamber the whole process repeats itself, as shown in this chart below.

So now that the bill has passed through three readings in both chambers, does it become law? Not yet! There are two more potential hurdles. One is the potential for the governor’s veto, which will be discussed later, and the other is the situation that arises when the second chamber amends the bill. In that case, fairness dictates that the first chamber, the one that introduced the bill, be allowed to agree or disagree with the changes. After all, maybe the second chamber amended the bill so that it would be the opposite of what the first chamber intended. In the House floor amendment sample for the same sex marriage bill, above, you can see that one of the proposed amendments was to eliminate same-sex marriages by proposing a constitutional amendment to restrict marriage to opposite sex couples only. If that floor amendment had passed, then the Senate’s pro-gay marriage bill would have been twisted into an anti-gay marriage bill, and it would only be fair to let the Senate decide whether it would approve the House’s version or not!  Bills that were amended in any way, even the slightest, by the second chamber would then enter the conference period.

The conference period

The purpose of a conference. Is for the legislature to make one more attempt at passing a bill that both chambers agree on by trying to resolving differences in the House and Senate versions of a bill. Small new committees, called conference committees, are created when the Senate president appoints a small group of Senate representatives and the Speaker appoints a small group of Representatives to sit down together in a “conference committee” to see if they can agree on amended language. Conference typically takes place during the last two weeks of a session. Here’s a quick video explaining the conference committee procedure in one minute!

Three outcomes exist for a bill that has a different version after the third reading in each house (in other words, a bill that is amended by the second house in any way). The easiest scenario is when the first chamber looks at the changes made by the second chamber, and agrees to them, without needing to revise them in any way. In that case, the first chamber merely takes another vote on the record, called a “final reading,” and if approved, the bill has passed the legislature (although it still can die: see “veto process” below).

The second simplest scenario is when the first chamber looks at what the second chamber did and decides that they are too far apart to even try to reconcile their differences in the short amount of time left in the session. Therefore, as identical versions of the bill did not pass each house of the legislature, the bill dies.

The third, and most involved, scenario happens when each chamber decides that there is a reasonable hope of reconciling both chambers to a mutually agreed upon set of changes to the bill. In that case, a Conference Committee composed of members from both the Senate and House is formed to review and potentially revise the bill. The Speaker of the House will appoint House conferees^[23], and the Senate president will appoint Senate conferees.^[24] These conferees are composed of a subset of members of the committees that previously heard the bill. While the conference committees have public meetings, there is no testimony allowed during conference.

So in short, if the conference committee members cannot agree on a mutual version of the bill, the bill remains in the committee and dies. If the conferees do agree on mutual language, that draft is tagged with a “C.D.” and is returned to each chamber so that the members can vote on approval of the C.D. Only if there is a majority vote in favor of the C.D. in each chamber will the bill pass the legislature. If only one chamber approves it, or both chambers reject it, the bill dies.

Is that the end? No! The veto process, explained

After the legislature passes a bill, the executive branch, through the governor at the state level and through the mayor at the county level, gets the opportunity to veto (to kill) the bill. This process is covered by the constitution in Article III, section 16^[25], gives the governor this right, and the simplest scenario is that if the governor approves it, the governor signs the bill, and it becomes law.

If the governor does not like the bill, the governor has two choices. The governor can simply do nothing. At the federal level, the result can be different, but at the state level, if the governor does nothing, the bill will become law after a specific number of days (see the chart below for the specifics). If the governor simply ignores the bill and allows it to become law without their signature, the governor is signaling that they don’t personally support this bill but they are willing to let it become law.

Interesting events kick off when the governor decides to veto the bill! First, the governor has to return the bill to the legislature with a statement of the governor’s objections. This is done through a device called a “Governor’s Message” (GM) which is intended to justify the governor’s actions so the legislature and the public know what the governor’s perceived problems are with the bill. The legislature at this point can choose to take no further action. If so, the governor’s veto stands, and, despite all the legislature’s hard work, the bill does not become law.

However, the legislature can choose to take action through a final amendment or a veto override.

Final amendment: a rare possibility

The legislature may convene at or before noon on the forty-fifth day after the end of session (typically in early July) in a special session for the purpose of amending the bill to resolve the governor’s objections in a document called a “Governor’s Message.” Only one reading would be required in each chamber to pass the amended bill, and then it would be presented to the governor, but would only become law if the governor signs it within ten days. This final amendment process is not used very often. It’s a little chancy for the legislature, because if the governor rejects their amended bill, maybe because the new version creates new objections by the governor, the legislature has no opportunity to amend the bill any further and the bill will die. The more common process is the veto override.

Veto override: the more common option

If the legislature is still in session when the governor announces the intent to veto, a veto override vote can be taken during the regular session, but each chamber has to vote to override it by a 2/3 majority, not the usual majority (51%) vote. If the governor announces the intent to veto the bill after the regular session, the Hawaiʻi Constitution^[26] allows the legislature can choose to come back into special session and can just vote on overriding the veto, again, by a 2/3 majority in each chamber. The bill usually is not amended by the legislature. This is the final step in the bill passage process, and after this process is over, each bill becomes an Act, most of which are then added to the Hawaiʻi Revised Statutes (except for bills involving money, such as the budget).

Testifying on bills: the people’s input to the legislature

When we covered committees above, recall that there are two types of testimony: written testimony, and oral testimony. Note that the legislature can change how it will receive testimony, but the procedure described below has been in place for a couple of years and if the exact process is not in place when you read this book, something similar will be available on the website and will be easy for you to follow after reading this section.

Important! Testimony cannot be submitted until after a bill has been set for a hearing, and then only within a tightly regulated time frame. At present, notice of a committee hearing on a bill only needs to be given 72 hours (three full days) in advance for the first Senate hearing on a bill (Senate Rule 21), and 48 hours (two full days) in advance for the House (House Rule 11.5) and for all other Senate hearings. These periods can be shortened by the President or Speaker for good cause. So time is of the essence in tracking legislation and being prepared to submit testimony.

Once a bill has been set for a hearing, you can submit testimony through the link at the top of the bill status sheet and follow the steps as shown in the brief video below.

The simple testimony below shows you what format testimony submitted online will look like. Notice that you have the option of just submitting your written testimony, or also testifying in person. At the time this video was recorded, the Capitol building was closed and the public was not allowed inside, although that was supposed to change in the middle of the 2022 session. It is not yet established whether oral testimony will still be allowed on Zoom after the Capitol reopens, or whether the process will revert to the pre-COVID system of allowing only in-person testimony.

The length of testimony varies, and if you are just starting out, you might prefer to write something short, as in the following sample of public testimony from a recent minimum wage increase bill. All testimony submitted to the legislature becomes part of the public record and it will be published to the web. Therefore, please never post testimony, no matter how strongly you feel about an issue, that you will not be happy to have your name associated with forever. It’s also more effective to use a calm and reasonable tone. Legislators are trying to get enough information from the public to do the right thing and do not appreciate rudeness or incivility, whether at a hearing or in written testimony.

If you are passionate about a topic, as the testifiers on both sides were in the same-sex marriage bill, the best thing to do is to submit both written and oral testimony.  Being present at the hearing allows you to weigh in on any proposed amendments and also to answer any questions the committee members might have.

Remember that YOU elect your legislate tors, and YOU have a right to have your opinions recorded on proposed legislation. It can be scary to submit testimony online, so if you want some practice, try looking for a bill that is uncontroversial – a bill promoting protection of Hawaiʻi’s environment, for example. It isn’t hard to support a bill that would protect that! Get a little experience in submitting testimony, and then after the hearing, go back and click on the testimony link on the status sheet and read what everyone else had to say to. That will help you develop your confidence to submit testimony on issues that matter deeply to you.