Legislating with Christmas Trees

Recent haggling over the passage of a funding bill in Congress creates a ripe opportunity to discuss a legislative “tool” that is used to bypass public input and scrutiny while still adhering to the letter of the law. [1] Like any tool, “christmas tree-ing” is not inherently bad on its own — it is the intent of the one wielding the tool that draws the practice into question.

The art of “christmas tree-ing” entails a committee chair hanging “ornaments” on a particular piece of legislation. At our state-level, ornaments are generally taken from other bills (in part, or sometimes in their entirety) that:

  • did not receive a hearing,
  • missed a deadline,
  • received a hearing but were not passed by a committee,
  • are alive, but will likely not advance due to an impediment.

What all of these ornaments have in common is that they clearly violate the spirit of the democratic process. Regardless of whether the intent is benevolent or sinister, democracy (established by the legislative process) is abridged as a matter of convenience and expediency. The democratic/legislative process is intended to weed out and/or refine bad legislation in the interests of the public good. In theory, what is passed by the Legislature is good and free from error. A good piece of legislation should be able to pass on its own merits, without the need for any fancy tricks or shortcuts.

Take for example a hypothetical bill about the humane treatment of kittens. This bill could be “christmas tree’d” with a provision from another bill to tax the sale of products made from wool. A bill about the humane treatment of kittens would enjoy overwhelming support by legislators – it is bad public relations to be a public figure who hates something as cute, cuddly and innocent as kittens. A tax on wool, however, would meet stiff opposition and is likely doomed to fail on its own.

This sort of leveraging is intended to put legislators in an awkward position. If they vote in against this theoretical “kitten” bill, they will be criticized for their lack of compassion for kittens. Even if their opposition to the bill was only related to the tax on wool, their ‘no’ vote would be accidentally (by the public) and deliberately (by special interest groups) misconstrued.

Over the course of the legislative session, there are many other metaphorical kittens — topics or groups that legislators are expected to support: veterans, children, education, cute animals, balanced budgets and good government to name a few. Opposition to these metaphorical kittens immediately draws scrutiny normally reserved for lawyers and reformed pedophiles. It is not a coincidence that these are the same social groups that candidates touted their support for during the previous election season – “Mark Takai supports veterans”, or “Tulsi Gabbard supports veterans”. These same topics, however, can be vehicles to hide and pass unpopular ideas without the scrutiny of public input and debate.

With David Ige’s election, he has pledged:

The Ige administration will address the many issues facing our state in a direct and forthright manner. We will collaborate with our federal and county partners and with the Legislature to serve all of the people of Hawaii. We will spend public funds thoughtfully and without waste to avoid raising taxes. We will make state government more efficient, especially in the procurement of goods and services and the hiring of personnel. We will conduct government affairs openly and be visible to the public.

The Ige administration will not only strive to do the right thing, but do it the right way. This administration will be honest, transparent, accountable, and responsive to you. We will serve the public interest and not special interests. We will hold regular news conferences. We will have no hidden agendas. [2]

Will Ige also ensure the transparency of a Legislature that fails to adhere to the spirit of the democratic process despite following the letter of the law? Will he veto all bills that do not meet the litmus test of “good government” to restore public faith in the executive and legislative branches?

I’m not getting my hopes high.

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[1] From Politico.com: 2015 budget bill winners and losers – The bipartisan funding bill before Congress is decorated with provisions to please senators and congressmen/congresswomen alike to secure their support for a funding bill that is not supported by Democrats and Tea Party Republicans. It was for this reason that the article quotes Sen. Richard Shelby:

“I don’t think it’s a Christmas tree,” he said. “Appropriations bills always have a lot of things in them because there’s a trillion dollars — how to spend it, how not to spend it.”

[2] Our Commitment. http://governor.hawaii.gov/

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