What happens when lawmakers disagree?
So far, the Legislature has been governing by consensus
WHEN A BILL pausing foreclosures and evictions emerged from the Senate Ways and Means Committee, advocates for low-income individuals were unhappy with the details of the bill – and they weren’t sure why they were not heard.
“We have been able to get access to staffers when we need it, but it’s not entirely clear to me what is happening to the information we are passing along,” said Andrea Park, a housing attorney with the Massachusetts Law Reform Institute. “It feels very opaque.”
State Sen. Jamie Eldridge, an Acton Democrat, said the housing bill did not go through the typical process of being crafted by the Housing Committee with a public hearing; instead, it was drafted by the Ways and Means Committee behind closed doors. “While I understand that the Legislature needs to act quickly on some legislation, if the committees are not reviewing legislation then there’s not going to be as much oversight and reading of the fine print,” Eldridge said.
Massachusetts lawmakers are still trying to figure out how to legislate without gathering, in accordance with public health guidelines to stop the spread of the coronavirus. So far, lawmakers have been able to privately garner broad consensus to pass a number of coronavirus-related bills in lightly attended informal sessions, where unanimous support is required. But sooner or later there is bound to be a disagreement. The House and Senate are currently split on the housing bill, for example. Lawmakers are trying to find ways to open the process up without creating a lot of physical contact. Would a virtual roll call, for example, be legal?
Since the coronavirus outbreak started, the Senate and House have focused exclusively on coronavirus-related legislation. They appropriated $15 million for the state response, expanded access to unemployment insurance, and gave administrative flexibility to municipal governments.
According to lawmakers, the bills are being crafted by a mix of committee chairs and legislative leaders. Although public hearings are not being held, committee chairs in several cases have asked for public comment in writing.
Sen. Becca Rausch, who chairs the Committee on Municipalities and Regional Government, said when a bill about municipal flexibility came before her committee, the committee opened it up to public comment and received nearly 200 comments in writing. “We had a good solid public process and put together a solid committee bill,” Rausch said.
But the need for consensus means bills have to be boiled down to the lowest common denominator of issues. Eldridge said the process – combined with a sometimes tight turnaround between when senators first see a bill and when a vote takes place – is “creating pressure on the members to not file amendments and basically just accept the bill that comes out from the leadership.”
Sen. Cindy Friedman, chair of the Health Care Financing Committee, wanted to pass a large bill about the scope of practice of various medical professionals, such as dental hygienists, podiatrists, and others. She ultimately narrowed it to include only nurses and pharmacists.
“We wanted to put a lot more in, but we made a decision this is what’s needed critically right now,” Friedman said. “We don’t want to make this more complicated. We want to move the thing out as quickly as we can, then we’ll come back and do another round.”
Sen. Pat Jehlen, a Somerville Democrat, said senators do have a chance to discuss bills in private virtual caucuses that can last up to three hours. Jehlen said Senate President Karen Spilka and Ways and Means Chair Michael Rodrigues have made efforts to address objections and get to the point where all senators are satisfied with the result.
In the House, Speaker Robert DeLeo is planning to hold videoconference meetings with five or ten members at a time to understand their priorities and opinions.
Rep. Lindsay Sabadosa, a Northampton Democrat, said she has been regularly sending letters to the administration and legislative leaders on her priorities. “We need to find new and different ways to have our opinion heard on different things,” she said.
Sen. Eric Lesser, a Longmeadow Democrat who chairs the Senate’s Economic Development committee, said in some ways the outbreak has made him more efficient in his ability to be constantly communicating with colleagues and constituents. “I’m not spending four hours in the car going back and forth,” Lesser said. “I’m waking up and I crack open a laptop and pick up the phone.”
Lesser said he is fielding hundreds of emails a day, in addition to calls and Facebook messages. He has three calls a week with all the committee chairs whose work relates to economic development and another three calls with the Senate’s coronavirus task force.
One lingering question is how to address bills where consensus cannot be achieved and a full formal session is needed. Additionally, bills authorizing the state to borrow money legally require a roll call vote.
A House working group that is leading the House’s coronavirus response includes five lawmakers, some with backgrounds in emergency management. DeLeo wrote in an email update to lawmakers that the group is considering “how to move forward with legislative business while maintaining social distancing practices” and ensuring members remain “as informed and engaged as possible.”
Group member Rep. Kate Hogan, the former House chair of the Public Health Committee and now a member of DeLeo’s leadership team, has told lawmakers that options include extending formal sessions past July 31 when the pandemic may be less of a problem or authorizing some form of remote voting, although there are questions about whether that is allowed by the state constitution.
Sabadosa said one idea raised on a conference call with DeLeo was letting House members vote from their offices, since House rules say lawmakers must be in the building to vote but not necessarily in the House chamber. Sabadosa worried that some offices have a dozen people in cubicles so that could be unsafe. She said she raised her concerns with DeLeo, who understood them.
Brownsberger said lawmakers are researching laws about what constitutes a roll call vote and whether it can be done via a zoom videoconference call. “I think we should be able to do a virtual roll call (technologically), we haven’t figured out what’s okay legally,” Brownsberger said.Most lawmakers say they believe legislative leaders are doing their best to move significant legislation in an unprecedented situation. “There’s no question it’s not as good as having everyone in the same room with freedom to maneuver, to include all the discussion you have in that context,” Brownsberger said. “I think it’s a question of doing the best we can in a difficult circumstance.”
Rep. Mike Connolly, a Cambridge Democrat, said everyone so far is “trying to be accommodating” in an extraordinary situation. But he hopes lawmakers could ultimately move to a system where recorded votes, amendments and debate could be done online. “Right now, I think a lot of the things that are being discussed are things that have a lot of broad support,” Connolly said. “But I have to imagine as we move forward, eventually there are going to be more tough decisions that are going to require people to participate in a real way…I think as we move forward, the need for establishing a transparent and inclusive process is going to become a lot more pronounced.”