It’s time to bring transparency to the Legislature

Rules debate can lift shroud of secrecy from work of the people's representatives

IN 2016, when the Massachusetts Legislature updated the state’s public records laws, they chose to punt on the issue of how such laws should apply to themselves. Indeed, Massachusetts remains the only state where the courts, Legislature, and governor’s office all claim to be fully exempt from public records laws.

In traditional Beacon Hill fashion, the Legislature created a commission to study the issue further, and the bicameral commission ended up with no actual recommendations.

But that’s not the fault of the senators in the commission. Frustrated with their House colleagues, the six Senate members issued their own report on December 31, 2018. In the report, they highlighted several as-of-yet-unadopted ways make the Massachusetts Legislature more accessible, including the release of all written testimony received prior to all committee hearings and any testimony or other materials submitted in-person during the hearing process, upon request and the online publication of any vote recorded either by electronic poll or by a vote of the “yeas and nays” during a committee meeting or executive session.

Earlier this month, the Senate reaffirmed their support for making testimony available (with, of course, appropriate redactions for “sensitive personal information or information that may jeopardize the health, wellness or safety of an individual”) and publishing committee votes online in the Joint Rules.

The House again is proving a roadblock. In the Joint Rules on which the House plans to vote today, public access to testimony is gone. And although the House embraced a form of publishing committee votes, they narrowed it to a list of the dissenting votes and the vote count. Why not just list yeas and nays as we do everywhere else?

To be clear, public access to testimony and committee votes are not radical reforms. The majority of US states, including California, Connecticut, Hawaii, Illinois, Maine, Maryland, Oregon, and New Jersey, publish committee votes online. And states like Connecticut, Hawaii, Maine, and Oregon go further than the proposal to simply make testimony available upon request: they publish it by default—something that the Massachusetts House showed it was able to do last summer with testimony submitted on the police reform bill.

The naysayers of transparency, those who would embrace the Panglossian view that we have the “best of all possible legislatures,” will make the specious argument that transparency just emboldens special interests. A new report from the Institute at Brown for Environment and Society shows the exact opposite: 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.

Making testimony available to the public does not stifle debate; it broadens it. And making committee votes public helps citizens and advocacy groups do the vital work of politics: identifying allies and building support within and across sessions. Openness helps foster social trust (something sorely lacking in our country right now). Indeed, open government should be viewed as part and parcel of the work of civics education that has bipartisan support in the State House.

Even if the stronger Senate language wins out in the inevitable conference committee, there is more work to be done to, as the Senate also noted back in 2018, “continuously strive to adapt to changing technology and the needs of the general public to create a free flowing mode of information transparency.”

We can do that by continuing to learn from other states. The state legislatures of California, Connecticut, Hawaii, Maryland, New Jersey, New York, and Oregon all provide thorough and reader-friendly descriptions of legislation in committee reports, identifying changes made in committee as appropriate so that no one has to go down a rabbit hole of state law to decipher a bill. The website of the California legislature contains a “compare” function that enables citizens and legislators to compare and contrast the language of a bill as it proceeds through the legislative process.

Meet the Author

Jonathan Cohn

Co-chair of issues committee, Progressive Massachusetts
I’m sure there are many other good ideas at work in other state legislatures to create a more robustly democratic legislative process. Our legislators only have to be willing to look.

Jonathan Cohn is chair of the issues committee of the advocacy group Progressive Massachusetts.