The news concerning Hawaii’s attempts to control the spread of Covid-19 is pretty alarming. I’m not talking about the string of days with new cases in the triple digits. I’m talking about the apparently collapse of the bureaucracies entrusted to plan and implement our collective response.

One question prompted by recent reporting on the state’s response to the pandemic is simple. If administration officials aren’t heeding their detailed plan for a controlled and staged reopening of the state’s economy, and they aren’t listening to legislators, who are they listening to?

That’s a tougher question to answer than it should be, because lobbyists are free to ply their trade by steering the policies of the governor and his administration to favor the special interests the lobbyists are paid to represent. The state has a lobbyist law that restricts some activities and requires disclosure, but when it comes to lobbying the governor and his administration, under most circumstances the law doesn’t apply.

And that’s a problem.

I’ll try to spell it out.

First, kudos to Civil Beat reporter Stewart Yerton for his recent reporting.

The headline to his story on Monday summed it up pretty well: “The State Has A Plan For When To Reopen Or Reclose. Why Aren’t We Following It?”

Nearly three months ago, the Ige administration rolled out its detailed plan for reopening the economy after months of being shut down.

It included detailed conditions that would have to be met in order to justify each successive loosening of community restrictions. Meet these goals, and these sectors can be given more freedom. Then work on the next level of health goals, and we were told we would then, and only then, continue to open up until we got back to a new normal.

What Yerton points out is that the whole scheme has apparently been tossed out the nearest window of the governor’s 5th floor offices, and we’re back to catch-as-catch-can decision-making without reliance on measurable criteria and public metrics to justify changes in policy.

So if they’re not paying attention to the plan, who is the administration listening to? What special interests are cozying up to the governor, his chief of staff, his chosen “economic recovery navigator”, Alan Oshima, and others at the center of administration decision-making?

We don’t know, because current law doesn’t require disclosure of these contacts. I thing that’s a key reason that Civil Beat couldn’t really answer the question about why the detailed plan for the staged safe reopening of the economy has been largely ignored. Those guiding the state’s policy are apparently unable or unwilling to explain the basis for their decisions. And lobbyists aren’t required to make their own disclosure.

The problem is that the state’s lobbyist Law turns a blind eye to lobbying executive branch officials and employees, from the governor on down.

Instead, it’s back to the unregulated Wild West when it comes to lobbyists who are paid to pressure, prod, or cajole the governor and his key staff, health officials, or department administrators involved in decision making.

If lobbyists go the capitol to persuade legislators, they are covered by the lobbyist law. But if they continue up to the 5th floor of the capitol building, where the offices of the governor and lieutenant governor are located, they’re exempt.

Why? Because Hawaii’s lobbyist law unfortunately does not apply to most executive branch lobbying. The law only applies to the executive branch when it is considering the adoption, amendment, or repeal of rules governed by the formal process of Hawaii’s Administrative Procedures Act.

So if you’re not lobbying for or against a rule being processed pursuant to the Administrative Procedures Act, the lobbyist law doesn’t apply.

If lobbbyists are trying to influence the course of the state’s pandemic response to benefit their clients, it doesn’t apply, and lobbyists are free to do their thing behind the closed doors of the governor’s office or state departments without registering or ever being called on to disclose what they are spending, or who is paying the bills.

There’s a big picture here. Lobbying is considered to be constitutionally protected activity because it is a form of petitioning the government for the “redress of grievances,” which is directly protected by the First Amendment.

But although we can’t ban lobbying, we can require disclosure so that the weight of public opinion can intervene when lobbyists’ actions appear to work against the public interest. That disclosure is a large part of what our state lobbyist law requires.

There have been several past attempts to amend the state lobbyist law so that it applies to all lobbyist of the executive branch. So far, these have not been successful.

But perhaps the experience during this pandemic will underscore for legislators the reasons the law needs to be amended, and provide some motivation to bring let a bit of sunshine follow lobbyists when they walk into those offices on the capitol’s fifth floor.

See:

“The Silence from the Fifth Floor: Is This the Transparency We Were Promised?” Ililani Media, February 4, 2015

“Ian Lind: Lawsuit Exposes Blind Spot in Hawaii Lobbyist Law,” Civil Beat, September 9, 2015.

“Regulating executive branch lobbying”, iLind.net, February 25, 2016.

Ian Lind: Lawsuit Exposes Blind Spot in Hawaii Lobbyist Law, Civil Beat, September 9, 2015.