At the start of the last legislative session, the MA House of Representatives had a spirited debate about transparency and the top-down nature of the House. That the House was having a robust debate about anything was a breath of fresh air, given the chamber’s aversion to showing division among members. But we also got to see progressive Democratic representatives roll call their own amendments about the rules of the chamber, in contrast to prior rules debates that had historically consisted of Democrats voting in lockstep to defeat a series of Republican-backed proposals. (Admittedly, the Republican caucus tends to actually be in favor of more open and small “d” democratic rules–even if they are not allies on the vast majority of policy).
At the start of the new session this year, the House decided to punt on voting on new rules, instead creating a task force to make recommendations and pushing off the discussion until July. It’s now July, and the House voted on a new set of rules yesterday. The task force had some positive recommendations, like continuing a recent reform that makes it easier to locate roll call votes on the Legislature’s website and supporting continued use of virtual participation accessibility to build on accessibility gains from the past year. But systemic issues were left untouched.
The House voted down a number of efforts to democratize the chamber, giving more power to the rank-and-file and the public vis-a-vis House Leadership. For now, we’ll focus on the three that relate to the priorities of the People’s House campaign because those three inspired the most active advocacy from grassroots activists and the vocal pushback from members of House Leadership. We’ll look at what state representatives said on the floor — and what your representative might be telling you — and why you shouldn’t buy it.
The Main Reason Why Your Representative Opposed a More Transparent & Accountable State House
The main reason why any representative voted no on any of these measures was that the Speaker opposed it, and they want to be in the good graces of the Speaker (and the Leadership team) because they think that unless they follow along, they will lose out on the budget or other legislative priorities. In reality, it’s not so clearly 1 to 1 (you can vote off and still get stuff done; you can not vote off and be left with nothing), but the fear of retaliation is not unfounded. Such a rationale is not incoherent and not dishonest, but it is flawed. And it merely reinforces the toxic power dynamic. (Curious to learn more about this? Check out episodes #4 & #5 of the Incorruptibles podcast.)
Representatives who are forthright will acknowledge this dynamic behind the votes, but many feel compelled to put forth arguments that stretch credulity instead.
Speaker Term Limits
Rep. Tami Gouveia (D-Acton) filed an amendment to reinstitute term limits for the Speaker of the House (a maximum of 8 years, four consecutive terms). The amendment failed 35 to 125, with only Rep. Mike Connolly (D-Cambridge), Rep. Nika Elugardo (D-Jamaica Plain), Rep. Russell Holmes (D-Mattapan), Rep. John Rogers (D-Norwood), and Rep. Erika Uyterhoeven (D-Somerville) joining Gouveia on the Democratic side.
The only compelling argument a representative could have put forth against Speaker term limits is that the House has already shown full willingness to repeal them when a Speaker reaches the term limit and wants to continue on (they did this in 2017–ironically, term limits had only existed because of a good government promise of former Speaker Bob DeLeo when he was vying for the job.)
But instead we got these arguments:
(1) We don’t have term limits for other offices, so this is discriminatory against the Speaker. Rep. Jim O’Day (D-West Boylston) argued, “Nowhere that I can recall here in the state are term limits qualified for, whether it’s for our governor, lieutenant governor, Senate president, our constitutional officers, all of us in this body, all senators across the body, none of us are faced with term limits. So my question is, why would we want to discriminate against the speaker of the House?”
First of all, this is a specious argument: term limits do not exist for position X, so why should they for position Y? And it’s followed with the comical idea of “discrimination against the Speaker.” Speakers aren’t protected classes….
But let’s get to the heart of the matter. For any position, there is an inevitable tension between the desire for institutional knowledge and the desire for fresh perspectives. The right balance to strike, I would argue, is to support term limits for executive (and executive-style) positions but not for rank-and-file legislative ones. The reason? Any position with executive or executive-adjacent power enables the holder of power to wield it in order to prevent robust competition or meaningful dissent from being possible. If someone has enough power to credibly retaliate with lasting impact, then there is no meaningful competition nor robust debate, and if someone holds so much sway in decision-making that all those who seek access flock to them, that also tilts the playing field unsustainably. A rank-and-file legislator does not amass such power. A governor or a mayor does. A Speaker is more akin to the latter, and we see that demonstrated in these votes!
(2) A lame duck Speaker would have less power, and that would be bad for the public. Rep. O’Day also argued, “In year seven, in year eight, and we have an eight year limit, they become lame ducks. I don’t think that helps our districts or constituents.”
We aren’t used to the boring transfer of power in the MA House because of how many past Speakers ended up indicted. But one would expect that when a Speaker wants to retire on their own, they would choose not to run for re-election. And if so, they would already be a lame duck! And they would still be wielding (far too much) power over the awarding of earmarks in the budget even as a lame duck given how long budget negotiations even go.
It is not even clear what benefits O’Day is even trying to argue that “our districts or constituents” are afforded from the centralization of power in the Speaker’s office. Is he saying the lack of ability to wield credible threats against members is a loss for all? If so…
(3) Term limits for Speaker are undemocratic. Rep. Christopher Markey (D-Dartmouth) argued, “With that, it’s the most important vote of the session. I can’t think of a less democratic way that we as elected officials support our own communities to be the best and the brightest to say that we think this person, whoever it is, should be the speaker and then not be able to do that because of a term limit.”
I addressed this point earlier–namely, how centralization of power can eliminate opportunities for the robust and open competition and dissent on which the practice of democracy depends. But beyond that, it is simply not the case that the Legislature lines up all 160 members from “best and brightest” to “worst and dimmest(?)” and chooses the best and brightest to be Speaker. With no offense directed at any Speaker past or present, that is simply not how it works — it happens through power, promises, and relationships.
(4) Our constituents don’t care about this. Rep. Jack Lewis (D-Framingham) argued, “I ask my colleagues: have any of you ever heard a voter bring this up as an issue? I’m confident that nearly universally, the answer is no.”
Let’s start by assuming that this is true, even though it may or may not be (it’s neither provable nor falsifiable, and it most certainly varies across districts). Of the 23 bills signed into law this session, 5 of them are sick leave banks for public employees, and 9 were home rule petitions. I’m certain that authorizing the town of Berlin to continue the employment of Paul Kenneth Clark was not a hot-button issue in anyone’s district, and yet that is one of the 23.
There are many things the Legislature passes that are not in response to public opinion. There are many actions that the public wants the Legislature to take that the Legislature does not. It is not a 1-1 relationship, and they should be voting on the merits of a proposal regardless.
(5) This is just like when Members of Congress tried to oust Nancy Pelosi. Lewis continued, “Please, don’t follow the lead of an extreme minority of members of our own party in Congress who tried to push our current U.S. Speaker of the House out of her position in leadership.”
That was not actually a fight about term limits for the Speaker; there was a fight about who the Speaker should be. Wrapped into that was a belief by some that Nancy Pelosi had been the head of the caucus for too long, but “Speaker term limits” would not have been directly applicable because part of her term as head of the House Democratic Caucus was as Minority Leader. The debate on the floor here in MA was about a principle, rather than any one person.
How This Vote Compared to Last Session
Last session, a similar amendment, filed by Rep. John Rogers, failed 43 to 113. Several representatives who supported this reform last session flipped their vote to a no: Rep. Dylan Fernandes (D-Falmouth), Rep. Patrick Kearney (D-Scituate), Rep. Christina Minicucci (D-North Andover), Rep. Maria Robinson (D-Framingham), and Rep. Lindsay Sabadosa (D-Northampton).
Making Committee Votes Public
Most bills never actually make it to the floor of the House, but they do still get a process. That takes place in committees, which either choose to advance or reject bills after a requisite hearing. But we don’t have a lot of transparency about what happens along the way — and who is doing what.
Rather than simply making these committee votes public, the House has decided to publish tallies and the names of those who voted no (but not those who voted yes, those who didn’t vote, etc.). This is more transparent than the previous practice (posting nothing), but the case for publishing only the no votes is quite tenuous.
We heard an array of bad arguments during the debate on the amendment that Rep. Erika Uyterhoeven (D-Somerville) filed to make the full votes public. Here are the four main ones that members of House Leadership used against her proposal and transparency in general.
(1) A committee vote is an uninformed snapshot. Rep. Kate Hogan (D-Stow) — and later Rep. Tom Golden (D-Lowell) — argued, “A committee vote is reflective of a specific proposal at a moment in time during the committee process and policy development stage. Support or opposition can – and should – change as the bill is refined and members learn more about the topic from colleagues, experts and the public.”
First of all, she seems to have a fundamental chronology problem. The House does this work of soliciting input from colleagues, experts, and the public before taking a committee vote: that process is called a hearing. Bills are only ever voted on before a hearing if they are being fast-tracked. Now, there can be additional process of soliciting input that is behind closed doors, but a committee vote is not uninformed, and there is no robust, guaranteed public process of soliciting feedback from colleagues, experts, and the public after it has been voted out of its first committee. Moreover, that a representative’s mind can change does not negate the utility of knowing where that representative stands at a given time — that is valuable information for constituents. If colleagues, experts, and the public want to make their case, they should know where someone stands.
(2) A yes is not a yes, but a no is a no. Rep. Joe Wagner (D-Chicopee) argued, “So for example, sometimes members will vote to advance a bill from committee because they support the concept of the bill, but would not support it affirmatively if that was the final form it might take. So I think a vote in the negative is very clear, but a vote in the affirmative is less clear.”
If a representative votes yes even if they would not support the bill on the floor as written, why is it not impossible that a representative who votes no would, by contrast, consider voting yes if the bill were substantively changed? I have heard of cases of representatives who vote things out of committee that they don’t support because the Speaker wants them to get out of committee, but that doesn’t justify lack of transparency — that’s just a case for better committee assignments. Moreover, there is already a vote for “I don’t support this as written, but I’m open to changing my mind” — that’s called “reserving one’s rights.”
Additionally, the idea that there is a category difference between a “yes” vote and a “no” vote ignores that, on occasion, the House votes to give a bill an adverse report: in other words, a “yes” to an adverse report is a “no” on the bill, and a “no” on the adverse report is a “yes” on the bill.
(3) Interest groups could misconstrue a “yes” vote in communication targeted at a representative. Wagner (and later Golden) also argued, “There are interest groups and people, frankly, who may have agendas, and would use a vote in the affirmative – if a member’s name were attached – to try to discredit a member or perhaps misconstrue a member’s position on an issue.”
This argument falls flat in two ways. First of all, if the tally exists and the list of no votes exists, then such a group will be able to tell whether a representative voted against something or not. The representative may have voted for the measure or not voted at all (or maybe chose to “reserve their rights” or to abstain). If a group were to say that the representative voted yes despite the “yes” votes not being public, would any representative actually retort, “How do you know I voted at all? Did you think about that?”
Beyond that, interest groups who would like to communicate against a representative will have material whether or not a committee vote exists—such members can even be targeted if they have no position at all if a group wants to accuse them of supporting the party’s stated position or criticize their lack of a position. Our concern should never be insulating representatives from their constituents — representatives in purple districts should want to be leading and engaging their districts.
(4) It is simply too much work for staff. Rep. Dan Cahill (D-Lynn) argued, “Our committee staff – I’ve learned this as new chair of Human Resources – our staff are working tirelessly, especially as a result of COVID-19. To have them take on additional duties to get down to granular level of information, to provide that would be unfair to our staff.”
If the House has decided posting tallies and no votes is not a burden on staff, it is unclear why simply adding the list of “yes” votes crosses the line. Posting information on the website is a minor task, especially given the fact that whenever action is taken on a bill, the bill’s page needs to be updated.
Beyond that, if legislators were concerned about their staff, they could allocate more of a budget for staff — to hire more and pay better, something they routinely choose not to do (even when increasing their own pay).
The amendment failed 41 to 117, garnering several additional supporters—Rep. Michelle Ciccolo (D-Lexington), Rep. Brandy Fluker Oakley (D-Mattapan), Rep. Liz Miranda (D-Dorchester), Rep. Steve Owens (D-Watertown), Rep. Dave Robertson (D-Tewksbury), Rep. Adam Scanlon (D-North Attleborough), and Rep. Dan Sena (D-Acton). Rep. Chynah Tyler (D-Roxbury), who was not present for the vote, indicated an intent to vote yes afterwards.
How This Vote Compared to Last Session
Last session, 49 had voted yes on a similar amendment. The representatives who flipped from yes to no were Rep. Carmine Gentile (D-Sudbury), Rep. Natalie Higgins (D-Leominster), Rep. David LeBoeuf (D-Worcester), Rep. Jack Lewis (D-Framingham), Rep. Liz Malia (D-Jamaica Plain), Rep. Christina Minicucci (D-North Andover), Rep. Maria Robinson (D-Framingham), and Rep. Lindsay Sabadosa (D-Northampton).
More Time to Read Bills
The quick turnaround between members seeing a bill and members having to vote on the bill was demonstrated by the rules package itself.
When the process is rushed, members are effectively giving up their own ability to perform due diligence on a bill, and they are cutting the public out of the process. (Who can read a bill that fast–let alone decipher the jargon?) The People’s House campaign had advocated for 72 hours to read bills as a default (and, just as with any such rule, the House could waive it with a 2/3 vote, which an 80% Democratic majority could achieve with votes to spare if needed).
Unfortunately, the amendment for 72 hours, which Rep. Uyterhoeven again filed, didn’t come up for a vote. An amendment from Rep. Christopher Markey (D-Dartmouth) for a 48-hour period did receive debate and a vote, and the amendment for 72 hours was ruled out of order due to similarity. Such a process is flawed: one, if acting in good faith, should consider 72 hours before 48 hours because one should always start with the largest changes before homing in to narrower ones. Moreover, representatives seeking to adhere to the wishes of their constituents without running too afoul of Leadership might want to vote for the 72 hours for which activists asked but dismiss the 48 hour one (a pragmatic if not as principled approach).
The amendment failed 39 to 119, with Rep. Mike Connolly (D-Cambridge), Rep. Nika Elugardo (D-Jamaica Plain), Rep. Tami Gouveia (D-Acton), Rep. Natalie Higgins (D-Leominster), Rep. Russell Holmes (D-Mattapan), Rep. David LeBoeuf (D-Worcester), Rep. Christopher Markey (D-Dartmouth), and Rep. Adam Scanlon (D-North Attleborough) joining Uyterhoeven in voting off.
The disingenuous arguments put forth on the floor would have been the same either way — 48 hours or 72 hours. Let’s take a look.
(1) This would grind things to a halt. Rep. Sarah Peake (D-Provincetown) argued, “As a practical matter, while I appreciate what he is trying to get at here, 48 hours is just too long – and the practical effect on this body is it would grind things to a halt, slow things down, and leave many important bills in the dust bin.”
The Legislative calendar starts in January of an odd-numbered year and goes through July of the even-numbered year (unless the Legislature votes to extend it). The Legislature has ample time in the calendar to pass legislation, and indeed, often spends large periods of time not doing so. A modest window of time for legislators to read bills — which could be waived without even the full supermajority — is not going to grind things to a halt. Grinding things to a halt is entirely self-imposed.
(2) This would leave so much on the table on the last day of the session. Rep. Ruth Balser (D-Newton) argued, “A big priority of mine – I’ve been working on the public lands preservation act – to my great delight it came out on the last day of the session. If this rule were in place, we would not have been able to pass this big priority of me and my constituents.”
If you need 48 hours with a bill (i.e., releasing bills on Monday to vote on Wednesday), all that does is move up the end-of-session deadline a little earlier. It would make for a less chaotic final day of the session if members were voting for bills at a more spaced out pace since they weren’t cramming everything in at the last minute. Our Legislature is full-time (we pay for them to be full-time), and they should use the full legislative calendar, not put important legislative work off to the last day.
(3) This would have led to the failure of the ROE Act to pass. Rep. Sarah Peake further argued, “In recent history important legislation like ROE Act that has come out less than 48 hours before end of the session. I don’t know about all my colleagues but I’m not prepared to say to women in this state, I’m sorry but while Supreme Court has cases making its way to you to take away your right to choose, because of a technical glitch and failure to get a two thirds vote, you have to wait for next session when it has a hearing again and comes to the floor for a vote.” Rep. Balser echoed this line: “My friend from Provincetown referenced the women of Massachusetts who were all, all of us, shaking in our boots as the Supreme Court changed and this Legislature wanted to protect the women of the state. We remember the back and forth with the governor.”
The timeline of this argument is factually inaccurate. The House and Senate overrode the Governor’s veto of ROE Act provisions (note: not the ROE Act itself, but most of its provisions filed as a budget amendment) on December 28 and 29. The session ended a week later on January 5. Taking a step back, however, shows how much self-imposed delay the Legislature created for itself. Even though the ROE Act was filed in January 2019 — a time when reproductive rights were under attack by a majority conservative Supreme Court and the Trump administration — the Legislature had left the bill on the table at the end of July 2020 when the session would traditionally end.
The bill gained new momentum after the death of Justice Ruth Bader Ginsburg (September 18) and confirmation of Amy Coney Barrett (October 26). The bill, in modified form, was passed as a budget amendment by the House (11/13) and Senate (11/18) several weeks after Barrett’s confirmation and two months after Ginsburg’s death — self-imposed delay. The different versions of a modified ROE Act were a subject of negotiations for the conference committee working on a final budget. That committee came to a consensus on December 4. Baker issued a veto on December 14. The Legislature had re-passed the modified ROE Act by December 18 and overrode his veto at the end of the month as noted above.
All delays were a result of the Legislature’s own inertia and lack of urgency. Arguing that a 48-hour requirement, which could be waived by a ⅔ vote (and the ROE Act provisions had ⅔ support throughout all of this), would create undue delay is simply disingenuous.
(4) This would have prevented the climate bill from passing. Balser further argued, “So too with climate action as the Legislature moved forward historic climate legislation. At the end of a session with COVID, the pandemic, the crisis, I would argue this rule would have, could have, jeopardized it.”
The Senate passed a climate bill on January 30, 2020. The House waited until July 31 of that year — a self-imposed delay of six months. After that, a Conference Committee worked on a consensus bill and did not come to an agreement until the penultimate day of the session — Monday, January 4. 48 hours is minor compared to their own delays in process.
But it gets worse. The Legislature had waited so long that the climate bill didn’t become law last session. Governor Baker vetoed it on January 14, and since the 191st session of the General Court was over, they could not override him. They thus had to create a new process to fast-track the bill, re-passing it on January 28. Baker sent it back with amendments on February 8, and they only enacted a final bill on March 18.
48 hours is tiny compared to the delays they made for themselves.
(5) This is just like the filibuster in the US Senate. Rep. Balser further argued, “But let’s not find ourselves in a situation like the U.S. Senate where it takes a two thirds vote for legislation to move.”
We would be so lucky if filibusters in the US Senate were time-limited endeavors, but they are not. Balser’s comment misunderstands the filibuster and the proposal in question. The filibuster is a requirement that, in order to end debate on a bill, 60 senators must vote in the affirmative (unless there is unanimous consent — i.e., no one present objects — to do so). If that threshold is not reached, then debate is not ended, and the vote cannot happen.
Under the proposal to extend the time for representatives to read bills, the requirement could be waived by a ⅔ vote of the Legislature or by unanimous consent. With an 80% Democratic majority, achieving ⅔ would likely not be hard if desired in a case of special urgency (or, frankly, even in cases with no urgency…). Nothing would be permanently blocking a bill from happening; it would simply be altering the timeline.
Moreover, none of the representatives afraid of delay imposed by rules saw fit to change the rule that requires members to vote in order to go past 9 pm. They go past 9 pm all the time, and they have to waste time taking a vote whenever they do so. And yet none of these representatives fought to take out that source of minor delay built into the existing rules? One wonders.
How This Vote Compares to Last Session
Last session, an amendment to grant a 72-hour review period failed 55 to 103. The representatives who changed from yes to no were Rep. Natalie Blais (D-Sunderland), Rep. Dan Carey (D-Easthampton), Rep. Michelle Ciccolo (D-Lexington), Rep. Mindy Domb (D-Amherst), Rep. Tricia Farley-Bouvier (D-Pittsfield), Rep. Carmine Gentile (D-Sudbury), Rep. Mary Keefe (D-Worcester), Rep. Jack Lewis (D-Framingham), Rep. Christina Minicucci (D-North Andover), Rep. Maria Robinson (D-Framingham), and Rep. Lindsay Sabadosa (D-Northampton).
