Archives and Political Processes: H-3 Construction

Legislative Process

Introduction

At both the federal and state levels, the legislative branch is one of three branches of government. The federal legislative branch is the United States Congress; at the state level, it is the Hawaiʻi State Legislature.

The major responsibilities of the legislative branch include making laws, amending laws, and formulating a budget. In addition, the U.S. Congress has the authority to declare war, approve treaties, investigate the government, confirm presidential appointees, and impeach the President. 

The Legislative Process

The U.S. Congress and almost all state legislatures are bicameral – that is, they consist of two chambers: a senate and a house of representatives. Legislation may be introduced in the senate, the house, or both.

A basic outline of the legislative process is as follows:

1. How bills originate: individuals or interest groups bring an idea or proposal to legislators, or bills may be drafted by the executive branch, or by legislators or staff
2. The bill is introduced by a legislator or group of legislators in the House or Senate or both.
3. The bill is referred to the appropriate House and/or Senate committee(s), depending on the subject matter of the bill.
4. The bill may become the subject of a hearing by a committee or subcommittee, but many bills never get a hearing. The hearing is an opportunity for legislators, agencies, experts, interest groups, and the general public to provide input on a bill.
5. The committee makes adjustments or amendments to the bill, which are documented in a committee report.
6. If the committee votes to approve a bill, it is then considered on the floor of the House or Senate. Legislators debate the bill, and vote to approve or reject it.
7. Both chambers must come to agreement on the same version of the bill before it goes to the executive (the president or governor) for their signature. This process is called “resolving differences,” and it happens via a conference committee made up of legislators from both chambers. One chamber may also agree to the version approved by the other chamber.
8. Both chambers vote on the final version of the bill.
9. The bill is signed by the president or governor. This could be vetoed, or overridden by ⅔ vote of the House and Senate. or simply not signed, which is known as a “pocket veto.”

The Relationship Between Lawmaking and Rulemaking

Once a law has been passed, agencies like the Department of Transportation and the Environmental Protection Agency make rules and regulations that specify how the law should be implemented. Rules and regulations often have the effect of laws, and are sometimes called administrative laws. Agencies create implementing rules and regulations through a process that requires proposed rules to be publicized and open for public review and comment.

To understand the relationship between lawmaking and rulemaking, we can consider the National Environmental Policy Act, a law that was passed by Congress in 1969 and signed by President Nixon in January 1970. NEPA requires federal agencies to document the potential environmental impacts of proposed federal actions in Environmental Assessments and Environmental Impact Statements. The text of the original law is five pages long.

The rules for NEPA, which were first issued as guidelines in April 1971, describe how the law will actually be implemented. Among other things, NEPA rules and regulations outline the triggers for the environmental review process and describe the required components of EAs and EISs. Unlike the 5-page law, the current NEPA regulations are 68 pages long. Proposed regulations are published in the Federal Register (FR), usually followed by a public comment period. Agencies then publish the final rules in the FR, at which point they are incorporated into the Code of Federal Regulations (CFR). It can take many years for proposed rules to be finalized.

Some of the earliest H-3 lawsuits pertained to compliance with NEPA the law (e.g., did the USDOT follow NEPA?); and others pertained to compliance with NEPAʻs rules (e.g., is the EIS submitted by the DOT acceptable?). Notably, the law and the regulations were all brand new at the time of the first H-3 lawsuits in the early 1970s.

The U.S. Congress and the H-3

Among the responsibilities of Congress are making laws and deciding how federal funds should be spent. Many of the congressional actions that affected the course of the H-3 relate to these responsibilities. They include passing the laws that created the interstate highway system, admitted Hawaiʻi to the U.S. as the 50th state, included Hawaiʻi in the Interstate Highway System, and created the environmental review process, the National Register of Historic Places, and the U.S. Department of Transportation. Congress also appropriated the majority of the funding for the freeway.

In addition to their responsibilities as lawmakers, members of Congress also assist individual constituents, state and local agencies, businesses, and other entities with their interactions with federal agencies. Hawaiʻi’s members of Congress accordingly coordinated between state and local  agencies and federal agencies such as the U.S. Department of Transportation and U.S. Department of the Interior.

Funding

The Federal-Aid Highway Act of 1956 established the National System of Interstate and Defense Highways in the U.S. and appropriated $25 billion from 1957 through 1969 to ensure the completion of the (then) 41,000-mile system.^[1] It established the Highway Trust Fund to ensure funding for the interstate system, primarily through excise taxes on motor vehicle fuel. It also increased the federal government’s share of the planning and construction costs of Interstate Highway System highways from 50% to 90%.^[2] Hawaiʻi’s inclusion in the Interstate and Defense Highway System, via the 1960 Hawaiʻi Omnibus Act, qualified interstates H-1, H-2, and H-3 for significant federal funding.

There are two major categories of federal spending: mandatory (or direct) spending and discretionary spending. Mandatory spending, which represents nearly two-thirds of all federal spending, refers to funding that is authorized by existing laws. Examples of mandatory spending include entitlement programs like Social Security, Medicare, and Medicaid, and other spending provided for through authorizing legislation outside the annual appropriations process. Mandatory spending can only be changed by making changes to the authorizing legislation. Discretionary spending is determined every year through the appropriations process. Most defense funding is discretionary, as is spending on education, research, and other programs.^[3] Because discretionary spending must be approved by Congress every year, it is more vulnerable to revenue shortfalls, shifting priorities, and political pressure than mandatory spending.

Funding for the Federal-Aid Highway Program primarily falls into the mandatory category and therefore is not subject to the annual appropriations process.^[4] In this way, much of the federal funding for H-3–90% of its cost–could be said to have been relatively secure.

The 4(f) exemption

Section 4(f) of the U.S. Department of Transportation Act of 1966 (49 U.S.C. § 303) “provides that the Secretary of Transportation may approve a transportation program or project requiring the use of publicly owned land of a public park, recreation area, or wildlife or waterfowl refuge of national, state, or local significance, or land of an historic site of national, State, or local significance, only if there is no feasible and prudent alternative to the using that land and the program or project includes all possible planning to minimize harm resulting from the use.” A 4(f) statement is the Secretary of Transportation’s determination that the requirements of Section 4(f) have been met.

The question of whether or not a 4(f) statement was needed for H-3 (because it would be adjacent to Hoʻomaluhia Park and go through part of the Pali Golf Course) had been working its way through the courts. In May 1985, the U.S. Supreme Court declined to hear the state’s appeal, upholding the Ninth Circuit Court of Appeals determination that the state had not adequately considered alternate routes that would have avoided Hoʻomaluhia Park and the Pali Golf Course.

When it appeared unlikely that the courts would make a determination that was favorable to the freeway, the Ariyoshi administration asked the congressional delegation to seek a legislative exemption to section 4(f) of the Transportation Act.^[5] There were multiple attempts, beginning in 1985, to get the environmental exemption through the 99th Congress. One of the earliest versions of the legislation sought an exemption that was very broad in scope: it would have allowed construction to continue “notwithstanding any other provision of federal law enacted heretofore or subsequently.”^[6] Later versions were much narrower in scope–limited to exempting the H-3 from section 4(f) of the Transportation Act.

Senator Robert Stafford (R-Vt.) was concerned about the freeway’s cost, and the fact that an environmental exemption would set a dangerous precedent for other highway projects built with federal funds. As chair of the Environment and Public Works Committee, Stafford had a lot of authority over whether or not the various versions of the exemption would advance through the legislative process. Nevertheless, committee hearings on versions of the exemption were held on November 6, 1985^[7] and May 20, 1986.^[8]

The state’s and the delegation’s position was that Congress intended 4(f) to prevent freeways from going through or taking from an existing park. The H-3, they maintained, would not take any land from Hoʻomaluhia Park; in fact, the park’s boundaries were intentionally expanded into the planned path of the freeway in order to create a buffer that would prevent further development in that area. Further, they argued that the H-3 was widely supported by the public. The city, which opposed the freeway, argued that a waiver would “preempt legal processes and local political processes”; further, the H-3 would not solve Oʻahu’s transportation needs. The Office of Hawaiian Affairs opposed the exemption on the grounds that the Luluku site needed to be protected. The League of Women Voters did not take a position on H-3, but said that individual projects should not be exempted from federal environmental regulations by acts of Congress. The Stop H-3 Association argued that H-3 would have negative social, environmental, and economic impacts; that the freeway was widely opposed by the public; and that an exemption would set a dangerous precedent that could undermine the body of federal environmental law.^[9]

The exemption was ultimately attached as an amendment to the continuing appropriations bill for fiscal year 1987. It passed and was signed into law by President Reagan in October 1986. Opponents of the freeway subsequently challenged the constitutionality of the exemption, but the exemption was upheld by the courts.

The Hawaiʻi State Legislature, the Honolulu City Council, and the H-3

Although some state legislators, like Rep. Bob Nakata (Lāʻie-Kahaluʻu), opposed the freeway;,the state legislature mostly supported and financed the state’s share of the project. In March 1974, for example, the legislature passed a resolution by wide margins (20 to 5 in the state senate, 37 to 8 in the state house) aimed at the Honolulu City Council, expressing support for the continued construction of H-3.^[10]

Unlike the state, the city was divided on the freeway. Some city councilmembers, members of the administration, and especially Mayor Frank Fasi (who had previously opposed, then supported the project)^[11] expressed strong opposition to freeway. The city wanted to see funding spent on other transportation projects, such as mass transit. In May 1986, for example, City Director of Transportation Services John Hirten and City Council Chair Marilyn Bornhorst provided oral and written testimony in a Congressional hearing, opposing the 4(f) exemption on the grounds that H-3 did not meet Oʻahu’s transportation needs.^[12]

The following information is adapted from Gwen Sinclair’s textbook Government Information: A Reference for Librarians in Hawai‘i, 2nd Edition.

Where to Locate Documentation of the U.S. Congress

The U.S. Congress meets in two-year periods called Congresses. Each Congress is composed of two one-year-long sessions. For example, the first session of the 117th Congress went from January 3, 2021, to January 3, 2022. The second session of the 117th Congress went from January 3, 2022, to January 3, 2023. The Congress (e.g., 89th Congress, 95th Congress, etc.) is frequently a starting point for conducting Congressional research.

Federal laws

The primary codification of federal laws (laws compiled into a systematic code) is the United States Code (U.S.C.). It is compiled by the Office of the Law Revision Counsel (OLRC) of the U.S. House of Representatives and arranges laws by subject in 51 titles, or broad subject areas. Researchers who need the most recent version of U.S.C. are directed to use the one on the OLRC website. The U.S.C. is also a collection in GovInfo.

Bills and resolutions

1993-present: govinfo.gov

1973-present: congress.gov

1789-present: Center for Research Libraries, Library of Congress

1789-present: ProQuest Digital U.S. Bills and Resolutions

Bill tracking

Following the progress of a current bill is relatively easy. The Library of Congress’ site (Congress.gov) allows researchers to view all of the legislation sponsored or cosponsored by a member of Congress and follow each bill’s progress through the legislative process.

Voting records

Often, researchers want to know who voted for or against a bill or wish to compare votes by party affiliation. The following resources can be helpful:

• Congress.gov provides access to roll call votes beginning with the 101st Congress (1989–1990).
• The Congressional Record contains recorded votes going back to 1873. Use GovInfo to get the full text.
• The House journal and Senate journal record individual votes on bills.
• Project VoteSmart allows you to find voting records on key legislation for individual members of Congress going back to the 1990s.

Committee hearings

Published congressional hearings include transcripts of the statements of committee members, questioning of witnesses, and written statements of witnesses. They may also include letters from organizations or individuals and reproductions of news articles or other reports. Sometimes, they contain the full text of the bill under consideration. More commonly, they list the amendments made by the committee.

The full text of hearings is available in GovInfo starting in 1995, and a few hearings going back to 1955 are also available. Many libraries have digitized the hearings of selected committees, and these can usually be found in HathiTrust or Internet Archive. Most pre-1975 hearings are not freely available online, though, and the only electronic access is through the subscription database ProQuest Congressional Digital Edition. HeinOnline also includes the full text of many hearings in its Legislative History Library. Keep in mind that not all committee hearings are published.

The Congressional Record

The Congressional Record (CR) is usually described as the verbatim record of the proceedings on the floor of Congress: speeches, amendments, procedural maneuvering, votes, and so forth.

The CR records each bill introduced in each chamber and the action taken, such as referrals to committees, floor amendments, and votes. There are two editions of the CR: the daily CR, published each day that Congress is in session, and the bound CR, a compilation of the daily issues. The index to the CR includes the section History of Bills and Resolutions, which allows a researcher to locate a particular bill and to see all of the actions taken on the bill along with references to the page numbers where each action appears in the CR.

All volumes of the CR are available in GovInfo.

Congressional Research Service reports

The Congressional Research Service (CRS) is the research arm of the Library of Congress and it conducts research at the request of members of Congress. Committee prints sometimes reproduce CRS reports, which may give an overview of an issue, provide historical background for legislation, or cover issues for the consideration of Congress. CRS Reports from 2018 onward are available from the Library of Congress. Other sources for CRS reports are described in this LibGuide.

Congressional Papers Collections

The papers of members of Congress contain everything from draft legislation to gifts given to that member. In addition to providing information about a member of Congress, congressional papers are very important for research in legislative history, historical events, and specific issues considered by Congress. The Center for Legislative Archives of NARA maintains an index of archival repositories and congressional collections to direct researchers to libraries holding papers of U.S. senators and representatives.

Where to Locate Documentation of the Hawaiʻi State Legislature

The Legislative Reference Bureau’s Public Access Room instructs citizens on how to engage with the legislature and how to track current legislation.

It can be helpful for researchers to note that the Hawaiʻi State Legislature meets in two-year periods called Legislatures. Each Legislature is composed of two 60-day regular sessions beginning in January, and sometimes additional special sessions. The 31st Hawaiʻi State Legislature, for example, was composed of the 2021 regular session plus three special sessions, and the 2022 regular session plus three special sessions.

Laws

Bills that become laws are compiled each session into the Session Laws of Hawaiʻi, available online. Codified laws can be found in the Hawaiʻi Revised Statutes.

Bills and resolutions

1999-present: Legislature website. Prior to 1999: Hawaiʻi State Archives.

Bill tracking

You can track the progress of legislation from 1999 to the present on the Legislatureʻs website. Testimony goes back to 2007. Testimony prior to 2007 is available at the Hawaiʻi State Archives.

Voting records

House and Senate journals give total votes: yes, yes with reservations, no, and absent. It does not list how each legislator voted in floor votes. Voting must be inferred by knowing who was in attendance. Committee reports state how each legislator voted in the committee.

Committee hearings

Unpublished transcripts: 2006. Prior years: State Archives. Legislature website: 2007-present

House and Senate journals

House and Senate journals, organized by legislative day, record action that takes place on the floor of each chamber, such as action on legislation (introduction, committee referral, votes), and floor remarks and debate. The House Journal is available online from 1971 to the present; the Senate Journal is available online from 1975 to the present.

Legislative Reference Bureau reports

The LRB prepares topical reports on current issues at the request of legislators. During the 2019 session, for example, the LRB issued reports on illegal fireworks, Title IX enforcement, consolidation of state law enforcement duties, and paid family leave. LRB reports from 1944 to the present can be found on the LRB website.

Where to Locate Documentation of County Lawmaking

To give you a framework for thinking about local government information, you can look at what they manage. Municipal governments typically have jurisdiction over things like roads, sewers, garbage disposal, police and fire, and libraries. In addition, there is often a tourism promotion branch and/or a business development office. Some cities, like New York City, operate the public education system, while in other cities, schools are operated by independent school districts that fall under the control of the state government.

Counties often manage elections, social services, law enforcement for unincorporated areas, courts, land transactions, tax collections, elections, and vital statistics. There is not a hard and fast line between the government functions handled by municipalities and counties, and it often depends on how state law defines government powers. In some cases, the city and county are a combined jurisdiction, such as the City and County of Honolulu.

Honolulu County: Honolulu City Council: Documents are available online by calendar year (1990 to present). All legislative documents dated prior to 1990 are available on microfiche at the Office of the City Clerk

Hawaiʻi County: Bills and resolutions from 1972-present are partially online, but testimony on bills is not. The county charter, ordinances, and county code can also be found on the County Council website.

Maui County: Agendas, minutes, and video recordings of Council and committee meetings are available online from 2015-present. Prior to 2015 must be requested from the County Clerk. Bills online 2015-present. Prior to 2015 must be requested from the County Clerk. Ordinances and resolutions are partly available online.

Kauaʻi County: Minutes and agendas of County Council meetings and public hearings are available online from 2010-present. Resolutions back to 2008 are also available. Older records must be obtained from the County Clerk. Council bills are published in the Garden Island newspaper.

1. Federal-Aid Highway Act of 1956, Pub. L. 84-627, 70 Stat. 374 (1956); National Archives, “National Interstate and Defense Highways Act (1956),” National Archives Milestone Documents, accessed June 28, 2023, https://www.archives.gov/milestone-documents/national-interstate-and-defense-highways-act. ↑

2. U.S. Library of Congress, Congressional Research Service, Federal Aid to Roads and Highways Since the 18th Century: A Legislative History, R42140 (2012); U.S. Library of Congress, Congressional Research Service, Federal-Aid Highway Program (FAHP): In Brief, R44332 (Updated 2021). ↑

3. U.S. Department of the Treasury, Federal Spending, FiscalData, accessed June 28, 2023, https://fiscaldata.treasury.gov/americas-finance-guide/federal-spending. ↑

4. U.S. Library of Congress, Congressional Research Service, Federal-Aid Highway Program (FAHP): In Brief, R44332 (Updated 2021). ↑

5. DF to Spark M. Matsunaga, Memo re: Supplemental briefing on the H-3 project…, November 6, 1984, box 404, folder 12, Spark M. Matsunaga Papers, University of Hawaiʻi at Mānoa Library; DM to Spark M. Matsunaga, Notes for February 4, 1985, luncheon appointment, February 1, 1985, box 404, folder 12, Spark M. Matsunaga Papers, University of Hawaiʻi at Mānoa Library. ↑

6. Congress.gov. “S.1796 – 99th Congress (1985-1986): A bill to authorize an extension of Interstate Route H-3.” November 6, 1985. https://www.congress.gov/bill/99th-congress/senate-bill/1796. ↑

7. Congress.gov. “Actions – S.1796 – 99th Congress (1985-1986): A bill to authorize an extension of Interstate Route H-3.” November 6, 1985. https://www.congress.gov/bill/99th-congress/senate-bill/1796/all-actions. ↑

8. U.S. Congress, Senate, Committee on Environment and Public Works, The Federal-Aid Highway Act of 1986 : hearing before the Subcommittee on Transportation of the Committee on Environment and Public Works, 99th Cong., second session, May 20, 1986. ↑

9. Ibid. ↑

10. Douglas Boswell, “Pro TH-3 ‘Message’ Approved,” Honolulu Advertiser, March 21, 1974. ↑

11. Gregg K. Kakesako, “State Loses Funds for H-3: $107 Million Sent Back After Ruling,” Honolulu Star-Bulletin, September 1, 1984. ↑

12. U.S. Congress, Senate, Committee on Environment and Public Works, The Federal-Aid Highway Act of 1986 : hearing before the Subcommittee on Transportation of the Committee on Environment and Public Works, 99th Cong., second session, May 20, 1986. ↑