Neal Milner: It Will Be A Long Time Before We Can Call This Year's Legislative Session 'Historic'

We focus too much on the dog-and-pony show of the session. When it's over, the real work begins.

By Neal Milner

May 16, 2024

The prevailing view is that the recent legislative session began with uncertainty and ended with success.

Actually, the session began and ended with uncertainty.

It had to, because uncertainty is the essence, the DNA, of lawmaking, no matter how powerful, novel or important the words appear to be.

A new law is like the birth of a child. The newborn may seem miraculous and beautiful, but she is the opposite of fully formed. Who knows how the kid will turn out?

But judging by the hoopla at the end of this year’s legislative session, you would think that words have magic powers casting problems under their spell and vanishing them away.

The session ended with a torrent of optimism and self-congratulation full of wonder words, like “historic,” “unprecedented,” “landmark legislation.”

Pump up the hot air balloons and let ‘em fly. 

Saying those bombastic words does not make it so.

The Maui fires are an easy example. The Legislature allocated a billion dollars for Maui fire recovery, mostly for housing-related issues. It passed legislation allowing Maui to get rid of short-term vacation rentals.

Sure, the Legislature’s actions were unprecedented, but that novelty itself is exactly why the impact of these laws is so uncertain.

Not long after the fire, FEMA offered to send trailers to Lahaina as temporary housing. Gov. Josh Green refused the offer because trailers are undignified, making people feel like refugees. He wanted FEMA to build temporary housing.

Multi-family housing was under construction in Lahaina above the burn zone in March. (Nathan Eagle/Civil Beat/2024)

Time passed. The state estimated its Maui fire housing costs based on the assumption that FEMA would come around and build.

But that agency did not. It said that its rules don’t allow it to build temporary housing. Hawaii’s congressional delegation has not been able to change FEMA’s mind.

There are no villains here, no incompetence. The governor was fighting for the Maui fire survivors’ dignity. FEMA was holding itself accountable to rules that Congress oversees.

The results? Much delay, the possibility of spending much more money for housing than the state anticipated and the reliance on a murky process of negotiations to get things straightened out.

Sure, the Maui situation is exceptional, but that formula for things going off the rails is not.

The Leg just passed a bill requiring the state’s Department of Agriculture to take more action to get rid of invasive species, especially the fire ant and rhinoceros beetles. 

Gov. Green called that bill “landmark legislation.”   

That’s calling it groundbreaking before anybody has even done anything to make the words work.  Optimism? Chutzpah? Faith in the process? Three-card monte? Who knows?

It will take years to determine the success of legislation about the coconut rhinoceros beetle. (David Croxford/Civil Beat/2023)

What we do know is that the actual effects of the bill are unclear and will be for a long time.

The Department of Agriculture, whose job it is to deal with these issues, has failed to do so in the past and has a leadership problem. It’s absolutely clear that big changes have to take place to make things happen — changes that involve new rules, much negotiation, effective leadership and no doubt a considerable length of time. If it happens at all. 

Stuff Happens

Unexpected events happen. Agencies that are supposed to make changes resist them. Things don’t work out as they were supposed to. Plenty of things can go wrong, sometimes because of laziness or incompetence but usually because stuff happens, and challenges turn out to be harder. Or lawsuits get filed.

Governing is hard. The devil is in the details. Democracy demands that it be hard: hearings, procedures, equity, giving people chances to participate and challenge and delay things they don’t like, taking on jobs that the private sector won’t do.  

Why do we give so much undue attention to the Legislature and so little to the rest of this process? 

First, our legislative fever comes about from prevailing myths about politics and law. It’s part of our DNA to believe that legislation is the firm, steady, ultra-powerful hand.   

The second reason we overly focus on the Legislature is because it’s crazy-easy to do so.

That’s called observation bias, you know, like the drunk who dropped his keys on the other side of the street but is looking on this side because the light is better. What becomes most important is what is easiest to observe.

It’s far easier for the media and the public to follow what happens at the Legislature than in the many state agencies whose work is far less public. (David Croxford/Civil Beat/2024)

The Legislature gets so much attention because it is so easy to watch and easy to cover.

The Hawaii Legislature is one huge, brightly glowing streetlight, easy to follow, and certainly a lot easier than any state agency whose job is to implement policy. Like, say, the Department of Agriculture.

A legislative session is like the unfolding of a novel before your very eyes, a classic form of storytelling with a prologue opening ceremony (including costumes and song), a series of challenges to face, attempts to overcome the challenges, an end of the session epilogue, again with songs and rituals, that ceremoniously ties a ribbon around the whole thing.

The Leg is under the streetlight, but so much of the key action happens across the street in those absolutely crucial agencies where the lights go down low.

The camera loves them, baby!

Imagine what it’s like to observe, say, the state’s Department of Agriculture at work. You can’t imagine it, right? Because you have no idea where they are or what they do.

For a media person, covering that agency, any agency actually, is boring and hard — a bunch of quiet, technical rulemaking and administrative decisions in some room buried in a building where it’s impossible to park. 

In short, the Leg is under the streetlight, but so much of the key action happens across the street in those absolutely crucial agencies where the lights go down low, and no one ever holds hands and sings before a live audience.

Give the legislators this session credit. They passed a lot of potentially important stuff. They did their job. 

But the session, as you can see from its final celebration, was also a dog-and-pony show that exaggerated their prominence and glossed over any skepticism about the ultimate impact of their work.

And speaking of canines, think of the legislators as dog show people and the session as a dog show.

As Tommy Tomlinson says in his wonderful new book about dog shows, the criteria that dog show people use to determine successful dogs works for them but is completely irrelevant for every other dog owner.

A successful show dog is determined essentially by one big thing: how close it is to the official standards set for the breed.

But the rest of us — your ordinary Joe with a shepherd-lab-beagle or Jane with a rescue dog pit bull mix — like our dogs for all sorts of reasons, many little things that add up to something big.

When a legislator raves about a piece of legislation because its words are so innovative or carefully crafted, he or she is acting like a dog show person exaggerating the importance of one big thing and ignoring the little things that ultimately make big differences.

Like Snoopy says: “Enjoy the little things in life because one day you’ll look back and see they were the big things.”