Last year about this time, Steve Crosby, the newly installed secretary for administration and finance, was shocked to discover a plethora of new laws attached to the state budget, which was passed under the pressure of a fiscal year already begun. On August 26, 2000, he held a press conference to rail against the abuse of so-called “outside sections.” “Although the Legislature is not solely to blame for the proliferation of the budget attachments, I think it is time for the insane system to be halted,” Crosby declared. “What I see is a process that is totally screwed up. We just don’t know what’s in these outside sections. It’s a lousy way to make public policy. This is no way to run a railroad.”
Crosby’s outburst should have shocked no one familiar with the recent proliferation of these budget tack-ons. More surprising, though, is the push to limit the use of outside sections his remarks inspired. Agitation for reform from outside the State House has come from such advocacy groups as Common Cause, MassPIRG, Citizens for Limited Taxation, and the League of Women Voters. Although these groups differ greatly on policy issues, they fundamentally agree that the budget is not the place to rewrite laws. The most recent budget submitted by the governor included just 41 outside sections, and the one proposed by the House Committee on Ways and Means contained only 37. The number of outside sections has mounted as the budget debate in the House and the Senate has worn on–56 in the budget passed by the House, 70 in the Senate budget, up from 45 proposed by Senate Ways and Means–and, as of this writing, the budget has not yet reached the governor’s desk. Even so, it seems likely that there will be fewer extraneous provisions in the fiscal 2002 appropriations law than in any budget in recent memory.
Still, ridding the budget of these pesky riders is more difficult than it appears. That’s because, apart from the budget, lawmaking in Massachusetts has practically ground to a halt. As a result, the budget debate–such as it is–has become a substitute for democratic deliberation all session long. It’s no accident that, even in this year’s attempt to eschew lawmaking-by-budget, the Clean Elections drama played itself out entirely through the budget process. While revisions, whether friendly or hostile, of voter-approved campaign financing could not get out of the Election Laws committee, the House tried to kill it by cutting the funding. The Senate tried to save Clean Elections not only by funding the public financing system but by amending it–by outside section.
Weaning lawmakers from outside sections will be difficult because the budget has turned into the only viable vehicle for all manner of legislative action. And such reform will be no more than cosmetic unless the Legislature finds a way to move contentious legislation toward resolution through a process of democratic deliberation, rather than by short-circuiting debate under the pressure of budget-writing.
Easy riders
Outside sections are pieces of legislation attached to the annual appropriations act. They are called “outside” because these sections follow those that specify actual appropriations in hundreds of line-items (section 2) and the amount of local aid each municipality is to receive (section 3).
These riders become law along with the state budget. By attaching these measures to the state budget, their legislative sponsors bypass the regular channels they would have to push them through as separate bills. Specifically, outside sections avoid committee review, public hearings, and repeated preliminary votes (“readings”) in both the House and the Senate that regular bills are subject to. What little debate they receive takes place under the constraints of the budget debate, which covers wide ground under the time pressure of an expiring fiscal year. And this deliberation may take place in only one branch of the Legislature: An outside section incorporated into, say, the House version of the budget may be “accepted” by Senate delegates in conference committee, allowing the measure to become law without the full Senate ever having approved it.
This truncated lawmaking method allows major legal and policy shifts to be approved with little scrutiny from legislators, the media, advocacy groups, and the citizenry. Some legislators are unaware of the impact of many outside sections until after they’ve passed on the House or Senate floor. It’s also a convenient method of settling political scores. A perfect example is this year’s move by the House to shift authority for hiring probation officers away from the Trial Court’s chief justice for administration, whom many lawmakers consider insufficiently responsive to the job candidates they send her way—a measure quietly inserted into the fine print of the budget with no debate.
In many ways, this technique has become a crutch propping up a lame and dysfunctional Legislature. Since 1995, well over half the legislation enacted in the Bay State has been approved as outside sections. It’s a way to get legislation passed in a complex and contentious public-policy environment where stalemate is common. Lawmaking by outside section relieves the legislative leadership of the burden of having to achieve genuine consensus and produce majority votes. As one former legislator remarks, “They’re intoxicating because they’re so easy, and if you like policy issues you can make bold changes quickly and with very few amendments.”
Outside sections date back to 1919, with the adoption of Article 63 of the state constitution, which formalized the budgetary process. The first general appropriations bill, enacted that year, had one outside section, which provided for the reversion of unspent funds to the state treasury. As time went on, more outside sections were added to the budget bills to place conditions or restrictions on appropriated items. Rulings by a succession of House Speakers and Senate presidents, however, consistently restricted these provisions to budgetary concerns.
In 1935, House Speaker Leverett Saltonstall declared a proposed budget amendment out of order because it was “not a regulation or restriction required for reasonable financial control.” In 1955, Speaker Michael F. Skerry warned–presciently–that “the introduction by amendment of extraneous subjects of legislation to general or supplementary appropriation bills…could result in entering through the ‘back door’ matters which would be difficult to secure through the usual channels.”
As a result, between 1919 and 1975 outside sections were used sparingly and in a largely responsible manner. During this 56-year period, the typical budget contained between four and 29 outside sections. They did not amend general law, alter existing laws, or add extraneous items to the budget. Rather, they dealt with fund transfers, personnel matters, acceptance of federal grants, state travel reimbursement rates, and the like.
Opening the floodgates
In 1975, that all changed. Fresh from the campaign trail, Gov. Michael Dukakis found himself saddled with a large fiscal deficit that he had inherited from the Sargent administration, but he stubbornly refused to raise taxes because of the “no tax” pledge that he had made during the campaign. So Speaker Thomas McGee and Senate President Kevin Harrington did it for him. By use of an outside section, they pushed through what was, up to that time, the largest tax increase in the history of the Commonwealth.
Dukakis and the legislative leadership also sought to cut unemployment-insurance costs by eliminating benefits to workers who left their jobs voluntarily or retired, but faced stiff opposition from organized labor. Senate Ways and Means chairman James Kelly did the job by means of an outside section. “This was done—the change slipped through and became law—and the floodgates were opened,” says former state representative Mary Newman.
Since then, the number of outside sections has grown dramatically, reaching a record high of 690 in fiscal year 1997. In fiscal year 2001, the budget had 498 outside sections, constituting more than half the pages in the budget document. Since 1995, between 50 percent and 70 percent of all legislative matters passed were enacted through outside sections of the budget. Last year, an outside section narrowed the eligibility standard for children to receive special education services–a proposal that special-education advocates had been able to thwart in bills before the education committee but could not defeat as a budget rider.
Perhaps the most Machiavellian use of an outside section was the 1980 reorganization of public higher education. Gov. Edward King wanted to create a central governing board, but could not overcome the campus status quo. The Legislature itself was deadlocked on the issue. But the Ways and Means Chairmen–John Finnegan in the House, Chester Atkins in the Senate–pushed through an outside section to create a board of regents, sealing the deal in conference committee, which gave neither the House nor Senate a chance to debate the move or vote it down without rejecting the entire budget. It was a perfect power play.
Though the use of outside sections as political expedients began under Dukakis and King, their number rising from 99 in 1976 to 158 in 1989, it was during the administrations of governors Weld and Cellucci that these budget riders began to stampede. During Weld’s first term, this mechanism became the major vehicle for lawmaking. The state budget included 381 outside sections in 1991, 391 in 1992, 597 in 1993, and 389 in 1994. They soared in 1997, reaching an all-time high of 690 extraneous provisions. As outside sections increased, the number of bills enacted through the traditional legislative process diminished accordingly. In the 1980s, the Legislature often enacted more than 700 laws a year, 812 in 1985. In the 1990s, the number of legislative acts drifted down to about 400 per year, reaching a low of 239 in 1997, when outside sections were at their peak. The budget, in effect, became the receptacle for many bills that could not get reported out of committee.
The compliant (if not complicit) role played by Weld and Cellucci in this explosion of lawmaking-by-outside-section can be explained, in part, by the dynamics of Beacon Hill in the ’90s. To get his policies and programs approved, Weld had to play ball with the Democratic legislative leadership. Basically, Weld went along to get along, as did Paul Cellucci when he succeeded Weld as governor in 1997.
After Weld lost his veto-sustaining Senate bloc of 16 Republicans in 1992, he held a much weaker hand politically. He arranged to hold weekly meetings with Speaker Charles Flaherty and Senate President William Bulger. There developed a spirit of collegiality among these three political leaders. They were operating from the same page, especially with regard to the fiscal crisis. Over and above that, outside sections provided a “quick fix” for dealing with the problem of divided government.
But it’s not just governors and legislative leaders who have pulled fast ones by means of outside sections. Rank-and-file members who find their bills bottled up in committee push their proposals as outside sections in order to force debate or obtain concessions from the leadership, such as a vow to bring up bills for consideration by a certain date.
“This is not an insignificant option in a highly controlled legislative environment,” says former state representative John McDonough. In 1994, McDonough notes, then-state representative Marc Draisen played the outside-section card to get his pharmacy freedom-of-choice bill onto the legislative agenda. Says McDonough: “In a political environment where stalemate can easily prevent important policy options from getting due consideration, I think this option is preferable to inaction.”
Restoring democracy to lawmaking
Useful or not, outside sections of the budget have become the crutch of a crippled Legislature. Policymakers in Massachusetts have paid a heavy price for allowing themselves to be seduced by the allure of outside sections. That price is a crisis of legislative deliberation.
In the words of The Boston Globe’s Spotlight team, “Genuine debate on public policy is rare. Roll-call votes are sharply diminishing. Deals cut in secret are quickly rubber-stamped. The committee system, especially in the House, has atrophied. Floor action is infrequent and pro forma. Dissent is simply not tolerated. Rank-and-file members have seemingly surrendered. And voters have tuned out the Legislature in breathtaking numbers.” This characterization was made in the context of an investigation of special-interest influence on Beacon Hill. But it could just as easily have described the conditions that make outside sections the Legislature’s lawmaking method of choice.
Under the prodding of instigators ranging from administrative and finance secretary Crosby to the Coalition for Legislative Reform, the Legislature seems to be trying to curb its appetite for budget riders. It’s a habit that lawmakers can only kick by themselves.
A policy brief issued by Crosby’s office puts it this way: “Ultimately, the problem posed by the proliferation of outside sections is not amenable to a solution imposed on the Legislature. Rather, the ability to solve this problem rests with the House and the Senate themselves–through their own internal rulemaking and how they choose to function.”
Success, however, cannot just be measured in a falling count of outside sections. Ruling riders out of order could further centralize power in the Speaker and Senate president, taking one more parliamentary maneuver out of the hands of the rank-and-file.
“I would suggest that the harm to citizens would be greater with the loss of this option than any imagined harm from the use of outside sections,” says McDonough.
What’s at stake here is nothing less than whether the Legislature is capable of democratic deliberation. Getting rid of outside sections accomplishes nothing unless there is an alternative way to move legislation through the conventional process of hearings, committee consideration, floor debate, bicameral compromise, and gubernatorial signature.
What is needed here is a blueprint–and a demand–for legislative democracy. Lawmaking by outside section is a betrayal of the very essence of democracy. The only way to end that betrayal is to make this fundamental institution of democratic government–the Legislature–a democratic institution once again.
Richard A. Hogarty is a senior fellow at the McCormack Institute of Public Affairs and professor emeritus of political science at the University of Massachusetts-Boston.