To: Senator Colleen Hanabusa

Chair, Special Senate Committee on S.R. 147

From: Senator Les Ihara, Jr.

Subject: Comments on Draft Report for S.R. 147

As you requested, I have described in this memorandum several amendments to the draft report for S.R. 147 that I plan to propose at the December 15th meeting of the special Senate committee. I also want to thank you for authoring this resolution and attempting to resolve the issue of conference committee chair veto powers that have been controversial since the 2001 Legislative Session.

S.R. 147 calls on the special committee to "submit to the Senate a report of findings and recommendations, including proposed draft changes to the Senate Rules and the conference committee procedures, if any…." Hence, it is my belief that the committee should submit recommendations to the senate, instead of a report that lists the various options and "leaves the matter to the members of the Senate to take appropriate action…."

Note, also, that the resolution asked the committee to submit its report to the Senate — not to the caucus of either political party. Therefore, I request that the following two statements in the report be deleted: "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" (page 3), and "The measure (to amend the rules) would appropriately cross-reference the changes approved by a majority vote in caucus, after discussion, prior to the Session" (page 11).

I believe that decisions on legislative rules and policy issues should be made in full view of the public, and not in private meetings of the majority caucus. As long as I’ve been a member of the legislature, the majority’s policy and practice has been to not take votes in caucus meetings. One reason for this is that such decisions may violate Article 12, Section 3, of the Hawaii Constitution because caucuses may be considered de facto committees of the legislature.

The option in the draft report to add a senate rule to authorize the president "to adopt appropriate conference committee procedures," acknowledges that the president currently does not have such powers. Nor was there a need for such authorization before 2001, because the procedures were considered administrative in nature, not affecting the powers of legislators. I believe that a rule, even when called a "procedure", that apportions power among legislators should be in senate rules and adopted by vote of the full senate. This would be consistent with all other legislatures that use conference committees. On this basis alone, I propose that the special committee recom-mend deletion of chair veto powers, including the fiscal chair veto power over committee reports.

Even if the above finding – that chair veto powers are not properly "procedures" – is rejected by the committee, I propose that all language in conference rules related to chair veto powers be deleted, including the fiscal chair veto power over committee reports. No matter what kind of machinations one can think of to modify the chair veto rule, the fundamental principle that each person in a democracy gets one equal vote should result in total repeal of the chair veto rules. Hawaii should not be the only state that gives its legislative conference committee chairs veto power over a majority of committee members.

Specifically on the fiscal committee chair veto power over conference committee reports, I believe Senate Rule 19* provides the fiscal chair with adequate powers to ensure that all fiscal bills are approved by the chair. This veto power is unnecessary also because, even prior to its adoption in 2002, a "past practice" rule, authorized by rule 87, provides for recommittal of any fiscal bill when requested by the fiscal chair in situations where a misunderstanding or disagreement occurs between the fiscal chair and a conference chair on a fiscal bill.

On the proposal to add the method of selecting conferees in conference procedures, I believe this should remain in senate rules, because it relates to the apportioning of power among legislators which should be voted on by all senators. I support adding language in senate rules to require that all bills be referred to committees based on jurisdictions described in the rules. Finally, on deferring bills without a vote in committee, I believe that senate rules and Mason's parliamentary procedures require a vote on a deferral if called for by a committee member; and even if such a motion is ruled out of order, the member may appeal the ruling of the chair to the committee.

cc: All Senators

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Concerning all other bills requiring appropriations, it shall be the duty of the Committee on Ways and Means to inform the Standing Committee responsible for the program area to which the appropriation relates of the amount and type of financial resources available, and it shall review the expenditure recommendation of the Standing Committee to determine that the recommendation is consistent with the resources available.

In determining the amount and type of resources available for a bill requiring an appropriation and in reviewing the expenditure recommendation of the Standing Committee, the Committee on Ways and Means shall invite the recommendation of the chair of the Standing Committee responsible for the program area to which the appropriation relates."