Honorable Robert Bunda

President of the Senate

Twenty-Second State Legislature

Regular Session of 2004

State of Hawaii

Sir:

Your Special Committee comprised of the Senate Committee on Judiciary and Hawaiian Affairs and two members of Senate Leadership, to which was referred S.R. No. 147 entitled:

begs leave to report as follows:

The purpose of this measure is to ensure that Senate decision-making procedures by standing committees and conference committee procedures related to decision-making by conference committees meet constitutional muster and are open and fair.

Your Committee received testimony from the State Attorney General, Hawaii Clean Elections Coalition, Green Party of Hawaii, Hawaii Women's Political Caucus, The League of Women Voters of Hawaii, Advocates for Consumer Rights, and six individuals.

The two leadership members are Senator Donna Mercado Kim, Vice President of the Senate, and Senator Shan S. Tsutsui, Majority Caucus Leader.

The hearing received some public comments that were outside the scope of the subject matter of this measure, but were nonetheless heard by your Committee in the interest of openness and accessibility and are addressed in this report.

This measure requests the Senate Committee on Judiciary and Hawaiian Affairs along with two members of Senate leadership to study the Senate rules relating to decision-making by standing committees and conference committee procedures as applied to the decision-making by conference committee. The purpose of the study is to consider whether the Senate rules and the conference procedures "need to be amended to ensure that Senators' voting rights are fairly apportioned and considered."

This measure was an outgrowth of the concern raised by certain Senators of the apparent conflict between the Joint Senate-House 2003 Committee on Conference Procedures, paragraph 8, relating to decision-making meetings, and Rule 22(1) and (2) of the Senate Rules of the Twenty-Second Legislature, relating to decision-making by standing committees. The issue is whether requiring a majority vote of all of the chairs of a conference committee violates the requirement of a majority vote of the quorum of a standing committee. Your Committee notes at the outset that the Attorney General has stated that the current procedures are constitutionally permissible.

Your Committee requested the input of the Attorney General to render a definitive decision as to whether Rule 22(1) and (2) of the Senate Rules, relating to decision-making by standing committees, and paragraph 8 of the Joint-Senate House 2003 Committees on Conference Procedures (conference procedures), pass constitutional muster. In response, the Attorney General submitted written testimony that concluded that:

Thus the Attorney General concluded that the decision-making provisions of the Senate Rules and the provisions of the Joint Senate-House 2003 Committees on Conference Procedures meet constitutional muster.

Notwithstanding the testimony of the Attorney General, your Committee has set forth provisions for consideration and discussion. It is the position of this Committee that the Senate Rules are to be first considered by the respective caucuses and ultimately for floor debate if the Senators so decide.

For most part, joint conference procedures require that both houses agree to the same rules. (Mason's 773-4) Any changes proposed by the Senate to the joint conference procedures must be approved by the House. Therefore, any proposed conference procedures recommended herein are not effective unless similarly approved by the House. Joint conference procedures are promulgated by the Senate President and the Speaker of the House, usually after consultation with their respective caucuses.

Notwithstanding, it has been the practice that certain procedures may differ by the respective Houses. An example is the need for a quorum for the House conferees to convene the first meeting in conference. Thus, if the Senate proposes a change in the decision-making process for itself, it is the contention of this Committee that such a difference is permissible and sanctioned by past practice.

1. Conference Decision-Making

The Joint Senate-House 2003 Committees on Conference Procedures (conference procedures), paragraph 8, is the focus of S.R. No. 147 as it relates to decision-making meetings, states in pertinent part:

A conference draft (CD) does not pass final reading until it is reported out of conference. Thus, a major step for the bill is to pass conference in order to make it to the floor for final reading.

The Hawaii Constitution is again silent on conference committee proceedings. A bill referred to conference has already passed the three constitutionally required readings in each house under section 15 of article III of the Hawaii Constitution. In addition to these six readings, there is a constitutional provision for a final reading under section 15 of article III. A vote on final reading is on the conference committee report. (Mason's 772-1)

Every member of the conference committee is a "manager." A "chair" of the conference committee from each house is appointed the "lead." Current rules require both a majority of the quorum of managers and a majority of the chairs to report out a CD. The issue presented by S.R. No. 147 is the fairness of requiring a majority of the chairs to vote out a CD. What if there is only one chair or two chairs for one house? In that instance, one chair would have the power to prevent the passage of a CD although a majority of managers and the other chairs vote to pass it out, which would be unfair on its face. This appears to conflict with the view embodied in S.R. No. 147, which promotes the position that the rules should "...ensure that Senators' voting rights are fairly apportioned and considered[.]" Yet your Committee reiterates that the Attorney General found this practice to be constitutional.

Conference procedures are within the discretion of the houses of the legislature. "The houses may provide for such procedure as they may agree upon unless constitutional requirements prevent." (Mason's, 775) Current conference procedures are constitutionally sufficient. The procedure relating to the voting power of chairs was adopted on April 12, 2001, for application in the 2001 legislative session conferences and has been applied since then.

If a conference committee is not able to agree, the committee can be discharged and a new conference committee appointed in the same manner as the original committee. (Mason's, 771-6) Thus there is recourse if a bill is not passed out of conference because a majority of the chairs of either house do not support it. However, this can be impracticable in view of the time constraints of conference proceedings.

The proposed change supported by the testifiers is to have the majority of the conferees with no differentiation between the chairs and managers. This is analogous to the standing committee decision-making. The most prevalent concern is that of the fiscal bills which will be addressed at length in the following section.

An alternative solution may be to have one chair or three or more chairs appointed. In this respect there will be no possibility that one or two chairs of a House effectively vetoing a bill. In the case of single referral bills, there should only be one chair in conference.

Bills in conference tend to receive more public scrutiny and media attention. In this regard, appearances count. Conferring power to a few conference chairs who could defeat a bill in conference, while justified for the money chairs in budget and appropriation bills, may not similarly be justified in other legislation. Further, current conference voting tends to be postponed because of the necessity to obtain the approval of a money committee chair who is also a conference chair, as is often the case in many bills. The money chair is often in more than one conference meeting simultaneously.

Your Committee recognizes that there are three alternatives to current conference committee decision-making procedures:

2. The Role of the Money Chairs in Conference

The Chair or Vice Chair of the Senate Committee on Ways and Means and the Chair or Vice Chair of the House Committee on Finance are usually selected as one of the chairs of a conference committee. Their roles are usually for the purpose of deciding on money matters contained in the bill, such as an appropriation or other fiscal implication. Your Committee is cognizant of the perception that the money chairs may have excessive power over a conference bill as in some instances, their individual vote could determine whether the bill does not pass out of conference, despite an affirmative vote from a majority of the managers. Yet your Committee recognizes the importance of the role of the money managers in conference with regards to the budget and financial plan. Your Committee proposed a remedy to this situation in Section 1, conference decision-making, above.

3. Scope of Amendments

Your Committee received disturbing testimony to the effect that Conference Committees amend bills to insert unrelated subject matters. The Joint Senate-House 2003 Committees on Conference Procedures (conference procedures), relating to bill amendments, provides:

This provision is the first paragraph of the conference procedures, which indicates its importance. Your Committee takes this opportunity to caution all conference chairs to be cognizant and vigilant of this procedure, so that any proposal to amend the conference draft passes the test of this provision. Public perception is negative about the secrecy and arbitrariness of conference proceedings. Your Committee reminds conference chairs that the manner in which proposed amendments are considered could alter the public's perception of the merits of the conference draft. Your Committee urges conference chairs to openly discuss all proposed conference amendments and whether those amendments pass the test of this provision, including proposed conference drafts that are exchanged between chairs. In this manner, the public can be assured that the Legislature is fairly complying with its rules.

Nonetheless, your Committee believes that clarification of this provision is advisable in view of the persistence of this issue. Your Committee presents the following as an alternative:

4. Selection of Conference Committee Members

Your Committee heard testimony inquiring about how conference chairs and managers are chosen. The current conference procedures are silent on this matter. Under current practice, the President selects the chairs and managers. Every Senator may request the President to be selected to serve on a particular conference committee.

In the interests of informing the public, your Committee presents the following as an alternative:

5. Binding Votes

Your Committee is concerned that there may be instances where a conference chair verbally votes affirmatively on a conference draft and later refuses to sign the conference committee report. Your Committee believes this is unacceptable, and presents the following as an alternative to the present conference procedures in paragraph 9:

As discussed above, the issue is whether requiring a majority vote of all of the chairs of a conference committee violates requiring a majority vote of the quorum of a standing committee. As discussed earlier, your Committee notes that the Attorney General has stated that the current procedures are constitutionally permissible.

Because the conference procedures are jointly adopted by both houses, your Committee believes that the Senate Rules should be amended to confer authority upon the Senate President to adopt appropriate conference procedures, without being restricted by consistency with Senate Rules.

Your Committee presents the following alternative as an addition to the Senate Rules:

Rule 86 of the Senate Rules provides:

The adoption of rule changes is made by Senate Resolution adopted on the floor of the opening day of the 2004 Session. The measure would appropriately cross-reference the changes approved by a majority vote in caucus, after discussion, prior to the Session.

Because the Senate is an independent body of the legislature, the Senate Rules may be different than the rules of the House. Section 12 of article III of the Hawaii State Constitution states in pertinent part: "Each house shall ... determine the rules of its proceedings[.]"

Based upon the testimony received at the hearing, your Committee has determined that certain clarifying amendments can be considered to the Senate Rules to address concerns about procedures and voting.

6. Bill Referral

In 1959, the Rules of Procedure of the Senate, Legislature of the Territory of Hawaii (1959 Rules), provided in Rule 55(2) that the Senate President makes the referral to the appropriate standing committee. In 2001, a rule change was made in Rule 45(3) to provide that the majority leadership make the referrals. Testimony indicated to your Committee that the process of bill referral should be clarified in the interests of informing the public of what actually occurs.

Rule 46 of the Senate Rules provides in pertinent part:

Your Committee presents the following alternative to the current wording of Rule 46(3):

The alternative wording is intended to ensure that the bill is referred to the appropriate committee with jurisdiction over the substance of the bill. Your Committee notes that the President is currently not a member of the majority leadership for purposes of bill referral, but nonetheless the issue was raised and needs to be clarified.

Your Committee notes that a referral may be changed under Rule 46(4) of the Senate Rules, upon written request of any chair who is aggrieved by the referral. Thus, there is recourse for any committee chair who wishes to contest the referral of any bill.

7. Holding a Hearing on a Bill

Rule 23 of the Senate Rules provides for the scheduling of hearings on a bill:

The rule was adopted for the 1993 Session and has not been amended. The rule does not require that the committee hold a hearing on every bill referred to it. The decision of whether to hold a hearing is at the discretion of the Committee Chair. Rule 23(3) provides procedures for committee members to force a hearing on a bill.

Time constraints (between bill referral and second reading or between second and third readings) dictate against having more elaborate or formal procedures such as a committee meeting to decide on whether to hold a hearing on a bill. A meeting of the committee members would necessitate public notice and recording of the vote. The actual hearing on the bill would be at a later point in time. This is simply impracticable. The current practice is necessary due to the inherent limitations of the constitutionally mandated legislative days and three readings in each house.

Furthermore, the decision on whether to hold a hearing is implicit in the authority of the Chair, who was selected with the concurrence of the colleagues in the Senate who have in effect delegated that authority to the Chair for reasons of the subject matter expertise and procedural efficiency.

Your Committee references the testimony of the Attorney General: "The Equal Protection Clause of the Fourteenth Amendment and the 'one person, one vote' principle does not require a properly apportioned legislature to distribute power and influence so that every legislator is as powerful and influential as every other member of the body." Therefore, your Committee does not recommend any amendment to the current Rule 23.

A standing committee chair's deferral of a decision-making on a bill has been raised as an objection to the current practice. Your Committee views this matter as inherent in the duties of committee chairs, as provided in section 611(a) of Mason's Manual of Legislative Procedures, 2000 edition (Mason's): "To call the committee together and to properly perform its functions." Further, the decision to defer is not made pursuant to a motion to postpone indefinitely requiring a vote under parliamentary procedure.

A measure that is deferred can be restored to the standing committee's hearing agenda at any time, because the measure is not being held. A committee chair may have many reasons to defer a measure, including the fact that the testimony indicates that it may be imprudent or unnecessary but may have some merit, or that the chair desires the bill to be redrafted by the proponent of the bill before going forward with it. Though it can be frustrating to the public, the procedure is a necessary part of the committee process.

Rule 22 (1) and (2) of the Senate Rules of the Twenty-Second Legislature, relating to decision-making by standing committees, was adopted as Rule 21 for the 1995 Session, and provides in pertinent part:

The rule provides for a vote by a majority of the quorum, which could be less than a majority of the entire committee. The Constitution is silent on the quorum and vote requirements in committee. In contrast, the Hawaii Constitution does provide requirements pertaining to floor sessions. Section 13 of Article III of the Hawaii State Constitution states in pertinent part, "A majority of the number of members to which each house is entitled shall constitute a quorum of such house for the conduct of ordinary business, of which quorum a majority vote shall suffice; but the final passage of a bill in each house shall require the vote of a majority of all the members to which such house is entitled[.]" Thus the passage of a bill on second reading constitutionally requires a majority of the quorum. Similarly, the passage of a bill out of committee requires a majority of the quorum.

Further, a less-than-majority vote in a standing committee is constitutionally permissible because section 12 of article III of the Hawaii Constitution states in pertinent part: "Each house shall ... determine the rules of its proceedings[.]"

An argument could be made that a standing committee could prevent a bill from reaching the floor by a majority vote of the members present rather than the majority of the entire committee. For example, a five person committee could decide on a bill with a vote of two members of a three-member quorum. Public opinion may view this vote as inherently unfair. This view is embodied in S.R. No. 147, which states that a goal of the committee is "...to ensure that Senators' voting rights are fairly apportioned and considered."

However, most Senators are normally stretched for time during the Session and cannot attend every hearing (including decision-making) at all times. There are simply too few Senators who can serve on every committee. An effort is made by Senate Leadership to distribute committee membership to provide for the maximum possible number of Senators on each committee. The number of committees could be shrunk, but this means that the entire gamut of issues could not be adequately considered. As discussed above, the opinion of the Attorney General supports the constitutionality of this rule.

Possible solutions are to:

Increasing the number of members of a committee could necessitate a reduction in the number of committees. Requiring a majority vote of the entire membership of a committee could cause scheduling problems, especially in light of the number of committees. Your Committee did not find a solution which is practical.

Your Committee presents this report as a discussion of the issues and a presentation of alternatives to the current Senate rules and conference rules. Your Committee makes no recommendations, but leaves the matter to the members of the Senate to take appropriate action, in the interests of maintaining open discussions and obtaining input.