Now that our Legislature is in session again and pondering several bills including some tax increases, we wanted to re-examine a tactic that has surfaced in recent years that has been applied to appropriation and tax bills — or could be applied to any bill with important numbers in them.
The tactic? Blank out all of the important numbers. So a bill could give someone a credit of blank percent, or change the tax rate on a tax to a blank rate. Three years ago, we wrote about this tactic and pointed to a bill that changed the income tax to:
“If the taxable income is: The tax shall be:
Over $6,600 but not over $9,600 ___% of excess over $6,600
Over $9,600 but not over $28,800 $___ plus ___% of excess over $9,600
Over $28,800 but not over $38,400 $___ plus ___% of excess over $28,800….”
And so on. That bill, HB1190 SD1 (2019), had 57 blanks in it.
We’ve seen that bills, even tax-increase bills, usually don’t have blanks in them when they are introduced, but committee chairs amend the bills to add the blanks at some time between the bill’s second and third reading. The blanks tend to stick around during subsequent hearings, and finally get filled in conference committee — when no public input is allowed.
In 2019, when our previous article was written, we pointed out that the Hawai‘i Constitution requires that bills pass three readings in each house on separate days, and that the intent behind that provision was “the opportunity for full debate in the open before committees and in each house, during the course of which the purposes of the measures, and their meaning, scope and probable effect, and the validity of the alleged facts and arguments given in their support, can be fully examined, and if false or unsound, can be exposed before any action of consequence is taken thereon.”
Late last year, our Supreme Court dealt a blow to the then-commonly used legislative tactic that we called “gut-and-replace.” The court held that when a bill is amended in a way that is not germane to its original form, then the count for hearings has to start over. If it doesn’t, the resulting law can be struck down.
We were wondering in 2019, and are still wondering now, whether the same reasoning can apply to a blankety blank.
The Legislature sometimes uses “short-form” bills, bills that have all of the constitutionally required elements but contain no substance. When they do, at the committee hearing the bill amends the bill to fill in the substance and recommits it to the same committee so it can hold a hearing on the bill now that there is material in it that the public can comment on. We think that the same should be required of blankety blanks. A bill that has more holes than Swiss cheese may be legally sufficient, but it’s impossible for the public to make any intelligent comments about it if it’s full of blanks. Without knowing the numbers, for example, the bill we quoted above could be a tax hike or a tax cut. Wouldn’t the public’s comments be different depending on which it was?
Maybe, just maybe, somebody needs to take a blankety blank bill that happens to become law and vigorously challenge it in court. Now that our Supreme Court has the League of Women Voters decision on the books, that kind of challenge can’t be laughed off as easily as it might have been.
OK, lawmakers. Want to pass one of these bills?
Go ahead, make my day!
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Tom Yamachika is president of the Tax Foundation of Hawai‘i.
