By Margaret Monsell
In what will not come as a surprise, Beacon Hill lawmakers set a new standard in procrastination this year. By the time they finished their work on a supplemental budget last week, formal legislative sessions for 2023 were over.
“Formal sessions,” under the Legislature’s rules, are distinguished from “informal sessions” in that debate and roll-call votes are permissible. During “informal sessions,” legislative business requires the unanimous consent of the members present, which is typically very few. (And because debate is barred, it requires the wordless consent of those few members as well).
Completing work on the budget in this tardy fashion involved a party-line standoff in the House of Representatives. The impasse lasted nearly a week, with the Republicans calling for another formal session and the Democrats refusing that demand. In the end, the House Democrats prevailed. The precedent their victory created has unfortunately expanded the possible range of lawmaking that happens informally, outside of public view.
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When the Legislature first turned its attention to the budget, with the end of formal sessions already looming, Republicans and Democrats disagreed about adding money to the state’s emergency shelter system, which is being strained by the arrival of migrants fleeing humanitarian crises in other countries. Republicans in both the House and Senate proposed restricting shelter eligibility to exclude anyone who had not already established residency in the state. The amendments failed and the budgets passed – all on recorded votes.
On November 15, the last day of formal sessions, the House and Senate still needed to reconcile the differences between their versions of the budget. Midnight arrived, however, with that task still unfinished.
To put the Legislature’s recent dilatory behavior into perspective, in the three decades since adopting the current two-year calendar, with its six-week break in formal sessions from November of the first year to January of the second, the Legislature has rarely had to make special arrangements for unfinished business. There have been only three occasions when the Legislature thought that a formal session might be necessary during that period. And each time (in 1999, 2001, and 2005), the Legislature voted to schedule that formal session before starting its break in mid-November. But this year, the Legislature allowed formal sessions to end without taking that step, landing in uncharted parliamentary territory.
What would happen next? Three possibilities: (1) the budget would not pass until the Legislature resumed formal sessions in January, which would further delay funding for scores of popular causes, like long-overdue raises for unionized state workers, (2) the Legislature would allow the budget to pass during informal sessions, thus torturing the definition of the required “unanimous consent” to include bills that 28 lawmakers had already voted to oppose, or (3) the Legislature would agree to call another formal session to finish its work.
The Thanksgiving holiday came and went without any progress. Finally, a week after Thanksgiving, the lawmakers charged with reconciling the House and Senate versions of the budget announced that they had reached agreement and that the compromise bill was ready to be enacted. The House, where the bill had originated, would go first.
House Republicans moved to return to a formal session. “A controversial spending bill of this magnitude should be taken up during a formal session, with debate and roll calls,” argued Minority Leader Brad Jones.
Rebuffing the Republicans’ motion, Speaker Ron Mariano scheduled an informal session to advance the bill, which about 15 of the 160 House members attended. Republican Representative Paul Frost of Auburn doubted that a quorum was present, ending the House session with no action having been taken.
The Speaker then scheduled another informal session for the next day, Friday, and yet another one for Saturday (a rarity) with no apparent intent to change the Democrats’ strategy. “We’re just gonna keep doing it. We’ll keep going at it,” House Ways and Means Chair Aaron Michlewitz told State House News Service. The Republicans kept going at it, too, refusing to let the bill advance during the two sparsely-attended sessions.
After the Saturday session failed to break the logjam, Speaker Mariano denounced the Republicans “dilatory tactics,” blamed them for the delays in funding for important projects that his own party’s foot-dragging was responsible for, and suggested that, having lost the debate on the shelter funding issue, they really ought to reconsider their insistence that the rules of the House must always be followed.
He also hinted that the Democrats might be considering a change of course. “There will be enough” Democrats at the next informal session on Monday, he predicted. Enough Democrats to do what? Agree to the Republicans’ call for a formal session, something they could have done days earlier and which could have been a cost-free way to blunt the criticisms that they’re indifferent to, if not hostile to, small-d democracy?
No, nothing of that sort happened on Monday. The Democrats did turn out in much greater numbers – three-quarters of them attended, but only to ensure a quorum. Representative Paul Donato of Medford called the session to order and established that a quorum was present. Then he asked whether there was any objection to taking up the supplemental budget (or “proceeding with the orders of the day” in Legis-speak). There was no objection; this time the Republicans allowed the bill to move forward, a reversal for which they offered no parliamentary or political explanation. The budget thus advanced with neither a debate nor a roll-call vote. The required unanimous consent was recorded by a hand-count vote in which no names were taken. Unanimity prevailed, 105-14. House Minority Leader Jones later argued that the outcome “highlighted the dysfunction on Beacon Hill,” but for the successful Democrats the outcome highlighted the overpowering of that dysfunction.
When the Senate’s turn to advance the bill arrived later that day, its members quickly voted to hold a formal session, a welcome endorsement of transparency, but in view of the resistance on the part of the House, a meaningless one. The bill was on the governor’s desk by the end of the day.
Lawmakers who are impatient with hallmarks of democracy such as debate and roll-call votes have likely taken from this experience that those niceties can be rendered expendable. We may be moving toward the day when formal legislative sessions happen only when the state constitution requires them — for veto overrides, land transfers, pledges of the Commonwealth’s full faith and credit, etc. For any other business, unanimous consent can apparently be manufactured with a little patience, if necessary, and not much trouble.
Margaret Monsell is a former assistant attorney general and former general counsel to the state Senate Committee on Ways and Means.