Rules reformers prepare for another fight in Legislature
During the ast session, rules got lost in the shuffle
STATE HOUSE NEWS SERVICE
AROUND THE COUNTRY, state legislatures use their public websites to publish reams of written testimony submitted in support or opposition to proposals, name special interest groups and people who offer formal feedback, and identify how representatives and senators vote in the committee-level decisions that can determine if bills advance or die. The information offers a clear window into the legislative process.
Virtually none of that is publicly available by default here in Massachusetts, where the Legislature keeps early but key steps in the lawmaking process so notoriously cloistered that outside groups have regularly given the Bay State poor or failing grades.
Transparency advocates from across the political spectrum are gearing up for another debate over what types of information to share with the general public as lawmakers set out in the coming weeks to decide internal rules that will govern the nascent 2023-2024 session.
“These lawmakers love to trash what goes on in Washington, but they very rarely take ownership of what happens in their own backyard,” said Paul Craney, a spokesperson for the right-leaning Massachusetts Fiscal Alliance. He later added, “I think the Legislature really has a long way to go if they ever want to pick up the mantle of transparency and good government.”
Each term, the House and Senate adopt rules covering how their branch-specific committees operate and attempt to agree on changes to the joint rules governing the more influential joint committees. The package of joint rules, which last session never came together in a permanent form, sets out key deadlines for the term and outlines how much time joint committees are allotted to review bills.
Last session, the Senate approved a joint rules proposal that would have required committees to publish hearing notices one week in advance, provide most electronically submitted testimony to the public upon request, and list how each member of a committee voted on the internal polls that either advance a bill to the next step of the process, give it an “ought not to pass” tag, or send it to a dead-end study.
The House responded with its own version that scrapped the suggested public access to written testimony, shortened the required hearing notice to 72 hours, and limited how much constituents could know about how lawmakers vote at the committee level. Instead of a full member-by-member breakdown, top House Democrats sought only to reveal the names of lawmakers who vote against bills in committee polls alongside aggregate, anonymized tallies of how many voted in favor and how many abstained.
Top Democrats never came to an agreement to resolve those differences. The proposals were sent to a six-person conference committee for resolution. That panel voted to shut the public out of its meetings, its House chair resigned mid-session, and the measures disappeared into the dark void of conference committee.
In fact, the Legislature in fact spent the entire 2021-2022 lawmaking session operating under emergency rules adopted on a temporary basis — leaving the pressure points likely to resurface in the coming weeks.
“Hide Who Voted Each Way”
The committee vote piece in particular has drawn scrutiny from advocates who want to shed additional light on the lawmaking process, and levels of support for various bills.
“Having a strong show of support for a bill in committee via a positive committee vote can make it hard for leadership to have to explain later why they decided to change a bill or shelve it or not take it on at all,” Leahy said. “And if legislative leaders want a bill to die, they can avoid and diffuse accountability if they are able to hide who voted which way or even how many people voted at all.”
A spokesperson for House Speaker Ron Mariano declined to make the Quincy Democrat or another member of his leadership team available to answer questions about the forthcoming rules debate, instead providing a statement from Mariano that read, “I look forward to working with colleagues on the development of a House rules package that will best facilitate the vital work of the upcoming legislative session.”
Although redrafted bills are assigned new numbers, House Democrats who previously opposed offering more access to individual committee votes have argued that it could misrepresent where lawmakers stand since a bill may change significantly between its advancement beyond one panel and its final passage in the chamber.
During a rules debate in February 2021, Second Assistant Majority Leader Rep. Sarah Peake of Provincetown urged her colleagues to reject a proposal to publicize how every lawmaker votes in committee polls because “the legislative process is a lengthy one.”
“Yes, people need to know where we stand on legislation, but you don’t really know what a bill looks like until it hits the floor,” Peake said on the House floor. “A vote in committee isn’t a vote for a bill or not for a bill. The only time we vote for a bill or not for a bill is when we stand here and those lights light up red or green. A vote in committee could be to move a bill forward so the next committee can work on it and amend it more. A vote in committee not to move a bill forward might be because of some testimony that the member heard and realize that bill is not yet ready.”
A tiny fraction of the thousands of bills filed each session receive recorded roll call votes in the House chamber, where roll call vote tallies that do occur are displayed on large electronic tally boards.
While lawmakers once conducted many committee votes during in-person executive sessions that the public could attend, almost all of that work now takes place in electronic polls — with no public notice given — where the Democrat chairs ask members if they agree or disagree with a recommended action.
Sen. Joan Lovely, who will be the Senate’s point person on the rules debate, said in a statement that her chamber “remains committed to increased transparency, which will be reflected in our rules.”
Because the House and Senate remained at odds last session over how much information to provide constituents and the press about committee votes, there was often a visible contrast in practice.
The online history for a mail-in voting extension bill Gov. Charlie Baker signed in March 2021 makes clear that Sens. Ryan Fattman and Bruce Tarr, two of the Senate Ways and Means Committee’s three Republicans, opted not to vote on advancing the measure out of that panel, while the third Republican, Sen. Patrick O’Connor, joined 15 Democrats in voting favorably.
No such breakdown is available for the similar poll the House Ways and Means Committee undertook before that bill hit the floor.
Committee votes on joint House-Senate panels, which are often the first major hurdle legislation needs to clear to advance toward a vote on the floor, offered varying levels of clarity last session.
When the Judiciary Committee sent Baker’s top-priority “dangerousness” bill to a dead-end study in July — a move one abuse survivor said made her feel like she was “punched in the face” — its Democrat leaders would say only that Republican Rep. Alyson Sullivan of Abington, Democrat Rep. Colleen Garry of Dracut, Democrat Sen. Cynthia Creem of Newton and Democrat Sen. John Velis of Westfield opposed the chairs’ recommendation. That left it impossible to conclude whether any other member of the panel was among the nine who supported killing the bill or the three who opted not to take a stance by “reserving their rights.”
“It’s all about politics. They don’t want to be held accountable,” Craney said about House Democrats keeping committee votes largely anonymous. “This is all about trying to avoid blame, keeping the scrutiny off of them.”
More Info In Other States
There’s plenty of precedent in other states for legislatures to make much more information available to the public, proactively and without prodding.
Across the border in Connecticut, the General Assembly’s website publishes hundreds of pages of public hearing transcripts, committee meeting minutes and reams of written testimony identified by author and whether they supported or opposed a given bill. The Nutmeg State also publishes detailed written summaries of committee roll call votes, listing by name each member of the panel and whether they voted yea, nay, abstained or were absent and did not cast a vote.
Bill histories on the Vermont General Assembly page list not only the steps in the lawmaking process, but witnesses who weighed in along the way.
While New Hampshire General Court’s website can be a bit more difficult to navigate, the Granite State’s legislature also takes a step not common in Massachusetts: according to the “How a Bill Becomes a Law” section on the official New Hampshire website, “the public may observe committees in executive session as they take their final vote on a bill.”
In Rhode Island, which according to the National Conference of State Legislatures has something more akin to a part-time legislature than the mostly full-time body in Massachusetts, testimony documents submitted to committees are also easily available online, as are name-by-name breakdowns of committee votes on bills and the dates those votes were taken.
“These are just basic functions of state government that we can’t even do properly, we can’t do in a transparent manner,” Craney said. “Many other states are way ahead of us on this stuff.”
Act on Mass worked to put non-binding ballot questions before voters in 20 House districts last fall asking voters if they want their state representatives to support rules reforms, similar to the Senate’s proposal last session, that would make committee vote breakdowns publicly available online.
Voters approved the question in all 20 districts with an average support of 84 percent, Leahy said. That includes Mariano’s South Shore district, where 78 percent of voters said they want the Quincy Democrat to be “instructed to vote in favor of changes to the applicable House of Representative rules to make each Legislator’s vote in that body’s Legislative committees publicly available on the Legislature’s website.”
But if the past is precedent, that outcome might not make much of a difference.
Sixteen districts approved similar non-binding questions in 2020, and four months later,the House voted 36-122 to reject an amendment from Somerville Democrat Rep. Erika Uyterhoeven — who founded Act on Mass before she joined the Legislature — that would have publicized details of committee votes, required a one-week notice for committee hearings and made written testimony available to the public upon request.
“I think legislators do want this, or at the very least don’t care that much to fight it. It really is a leadership issue,” Leahy said. “But of course, as we know, when leadership wants something to happen or doesn’t want something to happen, they have a lot of ways of enforcing that and a lot of carrots and sticks they can offer.”
Another priority for Craney this session is timing. He wants the two branches to tackle their rules debates early and get a package in place before lawmakers turn to more substantial business, arguing that last session’s order of operations was “inexcusable.”The Legislature’s late action on a sweeping climate bill in the 2019-2020 term left no time to consider Baker amendments before session ended. Lawmakers revived the bill in January 2021 right at the start of the next session, before they took up the formal rules debate.
“It was such a power grab. It kind of reminds me of two teams going on to the basketball court, and before agreeing to how you play this game, one team just takes off and starts playing,” Craney said. “I’m really hoping that the Legislature has some kind of restraint, that they consider their rules debate before they just jump into policies. Because that’s really inexcusable, it’s an embarrassment and that’s not the way you govern.”