At the start of the legislative session, both Senate President Karen Spilka and Speaker Ron Mariano said that they would take up reforms during the Rules debate in February to increase transparency and boost public confidence in the legislative process.
It’s no surprise why they are singing such a tune: Auditor Diana DiZoglio’s ballot question about auditing the State Legislature won every single city and town with a commanding lead, and the press rightly and repeatedly called out the Legislature last session for missing deadline after deadline and doing so much of their work in the dark (when and if there was work even being done).
But here’s what’s clear to us: we, the public, should be saying what would boost public confidence in the legislative process. That’s not a decision to be left just to State House Leadership.
Everyday people need to have clear ways of following what happens in our State House, making their voice heard, and seeing that their voice can actually have an impact.
Improving public access to information by making committee votes and testimony public
Increasing opportunities for public engagement in the legislative process by providing adequate notice of hearing schedules, further limiting the number of bills per hearing, providing testifiers with an understanding of speaking order, and guaranteeing the right of incarcerated individuals to testify (a practice which began last session)
Creating a more open, robust, and timely committee process by requiring public committee markup sessions and public committee reports with bill summaries, moving up the hearing and reporting timelines, expediting hearings for bills that advanced in the prior session, and requiring Conference Committees to meet in open session
Providing more time to read legislation, whether bills or floor amendments
The citizens of Massachusetts have made it clear: we expect our legislature to be transparent, democratic, and accountable to its constituents.
We write to you as advocates and concerned citizens who have a vested interest in such a legislature. Building on a rich democratic history that pre-dates our federal democracy, Massachusetts ought to be a leader in just democratic rule and civic action. Instead, national rankings in recent years place us towards the bottom with regards to public ease of access to information, competitive elections, and financial transparency.
Massachusetts distinguishes itself by being the only state in the entire country in which all three branches of government hold themselves exempt from public records law. This means that for most citizens of the Commonwealth, their municipal governments and town meetings are held to a higher standard of transparency and accountability than their state representatives and elected officials.
Calls for transparency and accountability in recent years have also been paired with demands for a democratization of power structures within the General Court. Testimony from former representatives confirms that meaningful debate– even outside of the public eye– is increasingly rare and openly breaking ranks is punished. The vast majority of Democratic representatives vote with leadership 100% of the time. These realities run counter to key democratic principles, which hold that open and robust processes of lawmaking, including disagreement, are essential to produce the best outcomes and ensure proper representation.
Concentrating the meaningful work of lawmaking in fewer and fewer powerful hands benefits paid lobbyists and corporate interests at the expense of grassroots advocates and everyday citizens. It also creates bottlenecks– a fact that was made all the more evident in this most recent legislative session. The first year of the 193rd session saw a record low number of votes or bills passed. At the July 31st deadline, advocates and rank-and-file electeds alike were left blindsided by the failure of nine major bills that had taken months to construct because negotiations stalled in closed-door committees, away from the eye of the public and fellow electeds.
While the legislature made commendable progress on these bills in informal sessions, it was at the cost of representative democracy. Informal sessions are poorly attended and most lawmaking was in closed-door conference committees. The overwhelming majority of outstanding legislation since July then passed without a recorded vote.
Regardless of the ultimate passage of versions of these bills, the fact remains that the processes by which they were passed exemplify the legislature’s existing problems with transparency, accountability, and democracy. The public’s demands for reform continue not in spite of but in no small part because of the events of the most recent session.
In the wake of the recent national election, we need Democratic officeholders to focus on rebuilding public trust in government and the ability of government to deliver for people. Essential to rebuilding that trust is a robust and open process where people feel that they can participate and that if they participate, they will be listened to.
We were encouraged to hear in both of your opening remarks last week that you are considering transparency reforms as a serious priority in revising the legislature’s rules. Although rules changes alone will not suffice to truly correct the power dynamics and climate at the State House, they are a tool by which the legislature could be made immediately more transparent. To make a meaningful difference, such rules changes must increase transparency of multiple phases of the legislative process. Piecemeal changes that do little to tackle the deep underlying problems will not sufficiently respond to the public need for reform.
As advocates, we have clocked years of experience helping fellow citizens navigate the legislative process, participating in discussions about process reform, and generating ideas about what it would take to make it the democratic, accountable, and transparent legislature it ought to be. Building upon this experience, we offer the following list of rules reforms to serve as a benchmark for meaningful change.
These changes would improve public access to information, increase opportunities for public engagement in the legislative process, create a more robust and open committee process, provide legislators with more time to read bills and amendments, and share power. Taken together, they constitute necessary steps along the path towards the very legislature which the people of Massachusetts have clearly demanded.
While you discuss and adopt changes to the legislative process, we also stress the importance of not adopting any that would, in fact, take us backwards in terms of transparency and public participation. Any normalization of last session’s practice of extending conference committees past July 31st in the second year of session would further limit the ability of rank-and-file legislators and constituents to make their voices heard in the legislative process and is unacceptable.
Improving Public Access to Information
Make committee votes public: all votes taken in House, Senate, and joint committees, including electronic polls, should be made publicly available on the Legislature’s website on the page of the relevant bill.
This helps everyday people better understand the mechanics of the legislative process, as a bill moves forward from filing to passage.
Non-binding ballot questions on this issue have passed in 36 House districts over the years with an average of 87% of voters in support.
A majority of US state legislatures already publish such votes, including states like California, Connecticut, Maine, and New Jersey.
The technology to do this already exists, as Senate Committees post such votes.
A committee vote should include a list of those who vote in the affirmative, those who vote in the negative, those who opt to reserve their rights, and those not voting.
Make testimony submitted to committees public: all testimony submitted to committees should be made public, with appropriate redactions for sensitive information
Seeing the arguments being put forth both for and against any piece of legislation provide a clearer picture of why a bill is or is not advancing and what is at stake. It increases the ability of everyday people to participate and empowers rank-and-file legislators to understand what is happening outside of their given committees.
This is already standard practice in such states as Alaska, Connecticut, Hawaii, Maine, Ohio, Oregon, and Wisconsin.
The technology to do this already exists, as the House did so during the police reform debate in 2020.
Increasing Opportunities for Public Engagement in the Legislative Process
Provide adequate notice of hearing schedules
Several committees have played a leadership role in improving public access to hearings by establishing a clear hearing schedule, with dates and topics designated. All committees should adopt this practice and should post such a schedule by April 1st of the first year of the legislative session.
House, Senate, and Joint committees should be required to announce the full details of said committee hearings, replete with brief summaries of the bills being heard, with at least two weeks’ notice.
This would improve the accessibility of committee hearings to working people, so that it is truly possible for all citizens to participate in the legislative process and offer testimony.
The recent advances in hybrid hearings have been an important and much-appreciated tool to expand participation, but many people are unable to change their work schedules on just a few days of notice.
2. Limit the number of bills per hearing.
Public hearings are a critical opportunity for everyday people to make their voices heard in the legislative process; however, when too many bills are heard at the same time, hearings can get inordinately long, making a 3-minute testimony into a full-day affair.
All testifiers should be able to make their voice heard, and the best way to ensure this is to limit the number of bills per hearing to a reasonable number. The current 50-bill limit in Joint Rule 1D is too high. A limit of 20 bills per hearing would be more reasonable and provide greater focus.
3. Provide speaking order for hearings to testifiers.
This is common practice in some, but not all, hearings. When people are traveling from across the Commonwealth and losing or adjusting wages at hourly jobs to testify in person because of the importance of an issue for them, they should be able to have an approximate understanding of when in a multi-hour hearing they might speak.
4. Guarantee of the Ability of Incarcerated Individuals to Testify at Hearings
Hybrid hearings have allowed for expanded accessibility of hearings in myriad ways, including enabling incarcerated individuals to testify at hearings. This began in the summer of 2023 when women from MCI-Framingham were able to testify on the prison moratorium bill.
When legislators craft policy, they need to hear from those most impacted by such policy decisions, and the inclusion of incarcerated individuals’ voices is vital, especially around prison conditions and the criminal legal system.
The Legislature must ensure that this right to testify is preserved and that there is no limit on the number of incarcerated individuals from any facility who are able to testify at a given hearing, the same right afforded to the general public.
Creating a More Open, Robust, and Timely Committee Process
1. Require public committee markup sessions.
The public is not able to see how and why a bill changes from its filing to its report out of committee. To empower all members of a committee to affect legislation and to build public trust in the decision-making process, committees should hold public markup sessions as they used to decades ago. Votes to report legislation favorably, report legislation adversely, or send legislation to study should occur only in such sessions.
2. Publish committee reports with summaries, rationales, and other information.
Committee staff are already doing impressive work compiling information on a bill, so that information should be made available to all legislators and the public. It helps rank-and-file legislators better understand what is happening in other committees and the public to better understand legislators’ rationale behind bills and to understand what those bills would do and how they might benefit.
Bills reported out of an “issue area” committee should be accompanied by substantive reports with a) a summary of the bill; b) a summary of the arguments advanced pro/con at the bill hearing and in written testimony submitted; c) a list of organizations and individuals that testified pro/con on the bill; d) a list of organizations and individuals that met or otherwise communicated with the Committee Leadership. And when a bill gets reported out of a committee like Ways & Means or Third Reading, those reports should also include an explanation of any changes made to the bill.
A gold standard of such reports is the California state legislature. Other legislatures that make public the summaries of bills in committee reports include Connecticut, Hawaii, Maryland, New Jersey, New York, and Oregon.
3. Start hearings early and move up the reporting deadline.
In our neighboring states in New England, committees are already scheduling or hosting hearings. As the urgency of action rises due to the incoming Trump administration, Massachusetts must be able to act quickly and flexibly to respond to threats. This requires an expedited hearing timeline, with hearings not delayed until the summer, fall, and winter, but occurring on a robust timeline starting March 1st in parallel to the budget process, not after.
The reporting deadline for committees (Joint Rule 10 deadline) should also be moved up, from its current date in February of next year to December 19 of this year, matching the last date of possible formal sessions for the calendar year. By reporting bills out earlier, the Legislature would more clearly set the agenda for the second year of work and guard against future bottlenecks.
4. Expedite process for bills reported out favorably in the prior session.
Committees put significant work into bills that get reported out, with conversations with advocates, experts, and the public, but if those bills do not get passed, then they start right back at square one in the next session. This slows down the legislative process and requires significant duplicative work.
Refiled bills that were reported out last session should have hearings by July 31 of the first year of the session.
5. Require Conference Committees to meet in open session.
Conference Committees should be meeting in the open, providing an opportunity for the House and Senate members to lay out the clear rationale for their respective chamber’s preferences on a given bill.
This openness benefits both rank-and-file legislators and the public, who are left in the dark for months as Conference Committees can sometimes last up to a year.
Provide More Time to Read Legislation
Provide at least 72 hours to read bills.
When the legislative process gets rushed, the odds of drafting errors rises, even under the best of intentions.
With ample time before receiving a bill and floor debate, legislators, experts, advocates, and engaged community members then have the opportunity to more thoroughly evaluate a bill, and legislators will better understand what they are actually voting on.
Provide at least 30 minutes to read floor amendments.
During floor debates, amendments are routinely redrafted or consolidated/bundled. Legislators should be granted the courtesy of at least a half hour to read the text of what is being brought to the floor.
Adopting these reforms in the upcoming rules debate will be an important step forward in creating a more open and transparent legislative process. However it is not the end. We also urge you to comply with the audit requested by State Auditor Diana DiZoglio. The State Auditor’s power to audit the legislature was confirmed by 72% of voters and the majority of voters in every city and town in Massachusetts. Improving public confidence in the Legislative process must entail respecting the clear will of the voters.
We look forward to working together towards our shared commitment to a legislature that is transparent, accountable, and democratic.
Sincerely,
350 Mass / Better Future Project
Act on Mass
American Federation of Teachers – MA
Asian American Resource Workshop
Berkshire Environmental Action Team
Boston Catholic Climate Movement
Climate Action Now, Western MA
Climate Code Blue
Fairmount Indigo CDC Collaborative
Franklin County Continuing the Political Revolution Climate Task Force
Greater Boston Physicians for Social Responsibility
Families for Justice as Healing
Food & Water Watch
Homes for All Massachusetts
Massachusetts Climate Action Network
Massachusetts Peace Action
Massachusetts Sierra Club
Mass-Care: the Massachusetts Campaign for Single Payer Health Care
Our Climate
Our Revolution Massachusetts
Pipe Line Awareness Network for the Northeast, Inc.
Jonathan Cohn, policy director of the group Progressive Massachusetts, said while Healey shouldn’t be expected to disclose what hotel she’s staying in or other intimate details, “you should be at least willing to tell people where you went.”
“It’s a sense of accountability to the public,” Cohn said. The public “should be able to know when you’re gone for a period of time without it being somehow shrouded in mystery.”
Progressive Massachusetts’ Jonathan Cohn said that while residents “don’t need to know the full itinerary of a private vacation,” it’s better to hear about it from the governor herself “than to only learn of her absence because another official is ‘acting’ governor for a few days.”
“So much of the legislative process occurs behind closed doors,” said Jonathan Cohn, policy director of the group Progressive Massachusetts. “Recorded votes are a critical opportunity for legislators to show the public where they stand.
As Sunshine Week got underway, Progressive Massachusetts pointed out that the Massachusetts House has taken fewer than half as many recorded votes so far this session than it had in any of the previous six legislative sessions. The House took 202 roll calls by March 11, 2012; 297 roll calls by March 11, 2014; 206 roll calls by March 11, 2016; 313 roll calls by March 11, 2018; 164 roll calls by March 11, 2020; and 155 roll calls by March 11, 2022, the group said.
So far this legislative session, the House has recorded 81 roll call votes.
The trend has been similar, but not quite as dramatic, in the Senate. Progressive Massachusetts said the Senate had taken 186 roll calls by March 11, 2020, then 135 roll calls by March 11, 2022, and had taken 114 roll call votes so far this session as of the start of the week.
“So much of the legislative process occurs behind closed doors, and recorded votes are a critical opportunity for legislators to show the public where they stand. When the House refuses to bring up votes until they are unanimous and when legislators withdraw their amendments without discussion or debate, we lose out on opportunities to make progress on the many critical challenges facing the commonwealth,” Jonathan Cohn, policy director of Progressive Massachusetts, said.
Sunshine Week is an annual collaboration among groups in the journalism, civic, government, and private sectors that shines a light on the importance of public records and open government. We could use some of that sunshine in Massachusetts.
We are supporting two bills this session that would advance such a vision of open government:
H.3040 / S.2024: An Act to Modernize Participation in Public Meetings, which would phase in a requirement for hybrid meeting access for state and local public meetings and provide grants to municipalities to boost technical capacity
S.1963: An Act to provide sunlight to state government, which would promote transparency in state government by removing the Governor’s exemption from public records law and requiring committee votes and legislative testimony (with appropriate redactions) to be public
Find out if your legislators are currently on board with these bills, and then write to them to urge them to support such basic measures to expand civic participation and promote good government.
Sunshine Week Statistic: Roll Call Votes This Session
Has the legislative session felt somewhat slow to you? Well, one statistic that stands out is the sharp decline in roll call votes (i.e., formal yea / nay votes during a debate): in the MA House, state representatives have taken only about half the number of recorded votes this session as in recent ones.
So much of the legislative process occurs behind closed doors, and recorded votes are a critical opportunity for legislators to show the public where they stand. When the House refuses to bring up votes until they are unanimous and when legislators withdraw their amendments without discussion or debate, we lose out on opportunities to make progress on the many critical challenges facing the commonwealth.
Total Number of Roll Call Votes by Session
Line Item Veto Override: a vote taken by the Legislature to reject the Governor’s veto of a specific budget appropriation. Since veto overrides require a 2/3 vote, this recorded votes are mandatory; the Legislature cannot take a voice vote (i.e., call of yea’s and nay’s).
Quorum call: a vote that is simply a call of the roll for attendance reasons and to ascertain if sufficient legislators are present
The number of roll call votes by the state House of Representatives has plummeted in recent years, prompting concerns from open government groups about a lack of transparency in Beacon Hill’s often secretive legislative process.
In the current legislative session, which got underway in January 2023, the House has held 81 roll calls that recorded how each lawmaker voted on specific bills, according to voting records from the House clerk’s office.
But the number of recorded votes has been declining for years, with 105 roll calls held during the preceding two-year session in 2021 and 2022, according to the data. In the 2017-18 session, the House held 313 roll call votes.
There has also been a decline of recorded votes in the state Senate, where 135 recorded votes were held during the 2021-22 session, according to the Senate clerk’s office. That’s compared to 186 roll call votes in the 2020-21 session.
….
Jonathan Cohn, policy director of the group Progressive Massachusetts, said the lack of recorded votes deprives people of “opportunities to make progress on the many critical challenges” facing the state.
“So much of the legislative process occurs behind closed doors, and recorded votes are a critical opportunity for legislators to show the public where they stand,” he said in a statement.
Chair Collins, Chair Cabral, and Members of the Joint Committee on State Administration and Regulatory Oversight:
My name is Jonathan Cohn, and I am the Policy Director of Progressive Massachusetts, a statewide grassroots advocacy group with chapters across the state committed to fighting for an equitable, just, democratic, and sustainable Commonwealth.
We urge you to give a favorable report to H.3040 / S.2024: An Act to Modernize Participation in Public Meetings (Rep. Garlick & Sen. Lewis) and S.2064: An Act extending the public records law to the Governor and the Legislature (Sen. Rausch).
Modern Open Meeting Access for All
Since early 2020, in response to the COVID-19 pandemic, the Legislature has suspended provisions of the Open Meeting Law to enable public bodies to carry out their responsibilities remotely, with virtual access and participation by the public. As in-person gatherings were able to safely restart, many public bodies have shifted toward hybrid meetings, enabling both in-person and remote attendance by both officials and the public.
Such hybrid meetings have been a boon to public participation. Remote access has removed obstacles facing working people, parents of young children, other caregivers, people with disabilities, people with limited transportation, among many other populations who may not be able to travel to a city or town hall or spend hours waiting for their time to speak. Yet retaining a robust in-person component recognizes the value of in-person discussion and deliberation to democracy and ensures that unreliable Internet access, common in rural and low-income urban areas, is not a barrier to participating in our democracy.
Although the Legislature recently extended the option for hybrid meetings until 2025, we should not be relying on piecemeal extensions but instead reform Open Meeting Law for twenty-first-century democracy and technology. H.3040/S.2024 provides a path for doing so, recognizing both the importance of open government and the needs cities and towns face in making that a reality.
Expanding Public Records Law
In the 2016 public record reform law, the Legislature created a commission to explore whether to expand the public records law to the Legislature and the Governor’s office, but that commission ended up yielding no formal report. Massachusetts remains the only state in the US where both the executive and legislative branch of state government claim full exemption from public records law. The same governing bodies that require cities and towns to adhere to strict Open Meeting Law rules exempt themselves from even a basic level of transparency.
As other state governments understand, making executive records like calendars, emails and texts, visitor logs, and call logs accessible is key to accountability: when such documents are fully kept secret, the public is left in the dark about whom the Governor is meeting and why, and what they are prioritizing.
The difficulty in obtaining information from the Massachusetts Legislature not only makes our state an outlier but also stifles the democratic process. The majority of states make committee votes electronically available, including states like California, Connecticut, Hawaii, Illinois, Maine, Maryland, New Jersey, and Oregon. And states like Connecticut, Hawaii, Maine, and Oregon make committee testimony fully available to the public.
The most moneyed interests are those who benefit from closed, hierarchical systems because they will always be able to work their way behind closed doors—whereas the public and researchers are rarely so lucky. Openness helps foster social trust: open government should be viewed as part and parcel of the work of civics education that has bipartisan support in the State House.
Co-sponsor An Act to Modernize Participation in Public Meetings (HD.3261 / SD.2017), which would improve equitable access to open meetings by guaranteeing that members of the public can participate in person or remotely and establish a trust fund to help municipalities finance this goal.
Co-sponsor An Act to provide sunlight to state government (SD.131) and An Act extending the public records law to the Governor and the Legislature (SD.390), which would end the Governor and Legislature’s full exemption from public records law
Hybrid access for local meetings has helped increase participation and has removed obstacles facing working people, parents of young children, other caregivers, people with disabilities, people with limited transportation, among many other populations.
There are countless stories out there about the positive impact of such increased access. And the stories might include YOU.
Personal stories are a powerful tool to move legislators to take action. Has remote or hybrid access to public meetings enabled you to more fully participate in local government? If so, please use this form to share your story with the ACLU for this important campaign.
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).