State Senate to House: Our Relationship Isn’t Working

The State Senate met last Thursday in between blizzards, and Topic A was a debate on the procedural rules that ought to govern the Legislature for the coming two-year session. The House made its rules proposal last month, and in response the Senate made a statement — a unanimous one — that it wants some changes in the ways the Senate and House conduct business together.

A little background. The 5000 or so bills the Legislature considers each session make their first stop at one of the 25 joint House-Senate committees, each of which has jurisdiction over a particular subject matter — Judiciary, Housing, Election Laws, Transportation, etc. The composition of the joint committees gives the House a nearly two-to-one advantage in membership. While this may seem to be a reasonable arrangement in light of the fact that there are 160 House members and 40 Senate members, the practical effect is that no bill moves out of a Joint Committee unless the House believes that it should, or is at least willing, in the interests of comity, to permit it to.

In the Senate’s view, comity has been in very short supply of late. And therefore the Senate is proposing to change the rules so that a majority of the Senate members on the joint committees can vote to approve Senate bills without the support of the House committee members. Similarly, House bills could be approved without the support of the Senate committee members (the Senate would likely point out that this arrangement is the status quo at present).

Senator Mark Montigny of New Bedford, the sponsor of this rule change, explained that the Senate was seeking only equal treatment in the legislative process. The Senate had no desire to be “grand poobah,” he said — a statement suggesting that under the present inequitable arrangement there does exist an Office of the Grand Poobah in the State House (and its number is 356).

The issue of relative power in the joint committees has been simmering for some time. During the last legislative session it played out most contentiously in the process that led, eventually, to the laws that were passed governing the minimum wage and unemployment insurance. On the minimum wage issue, the Joint Committee on Labor and Workforce Development held a hearing in June, 2013. By early November, to the Senate’s frustration, the Committee had still not issued any recommendation. So the Senate, acting under one of its own rules, asked the Senate Committee on Ways and Means to report out a bill for the Senate to consider. The Committee complied, and the Senate debated, amended and passed a minimum wage bill later in November.

Three months later, in February, 2014, not only had the House failed to act on the minimum wage proposal that the Senate had sent over, but also the Joint Committee on Labor and Workforce Development had failed to take action on another issue in need of attention — changes to the state’s unemployment insurance system — on which the Committee had held a hearing the previous May. So again the Senate passed a bill of its own, just as it had with the minimum wage.

Pretty soon the Joint Committees were facing a March 19 deadline for completing action on all the bills before them. That deadline came and went with no action by the Labor Committee on either minimum wage or unemployment insurance. One day after that deadline, however the House chairman of the Labor Committee announced that proposals on both issues were ready. But by then, the Senate had pretty much had enough with procrastination, and it used its power under the rules to prevent the Committee from taking action after its deadline had passed. The Senate’s understandable position was that it had already passed bills on both these subjects and, especially in view of the fact that the deadline for committee action had passed, that the House could simply take up consideration of those Senate bills.

But the House refused to do so, and instead set about finding a way to circumvent the Senate. We can skip over some of the intervening details of the standoff (which are available here) to the finale, when the Senate blinked and agreed to receive the bills that the House had finally passed (which, in substance, were very similar to the Senate’s proposals). In order to advance those bills to final passage, the Senate essentially was required to re-enact the minimum wage and unemployment insurance debates they had already held.

To sum things up, the House used its numerical advantage on the Joint Committee to delay progress on bills that it agreed were high legislative priorities. Then it rejected the action that the Senate had taken in response to its delays (you might say that the Senate had neglected to ask “Mother, may I?”) and forced the Senate to duplicate its prior efforts. No wonder that the body intends not to repeat that deferential performance this session.

The Senate is proposing additional changes to the rules to increase transparency (by requiring committee votes to be posted online within 48 hours) and to decrease the opportunity for dilatory tactics (by requiring committees to finish their work on bills by mid-January instead of mid-March). If the House agrees to these amendments (and today the Speaker proposed a conference committee to resolve the House-Senate differences), the result will likely be greater openness and a restoration of balance of power between the House (whose 160 members represent 40,000 residents each) and the Senate (whose 40 members represent 160,000 residents each). And who knows – it might also affect the dynamics of power within each chamber.

A little comity might be the ideal, but this plan could work too.

Heard The One About Scott Brown’s $60,000 State Pension?

What with all the snowfalls, not to mention the Super Bowl, you might have missed the news that Scott Brown has applied to the State Board of Retirement to begin collecting his state pension. As reported by the Globe, Fox 25 and other outlets (but not the Boston Herald, which is ordinarily vigilant on public pension matters), Brown filed his application shortly after his electoral loss in New Hampshire in November.

Here’s the squirelly part. The stories are estimating the amount of his pension to be $60,000. That’s wildly wrong on the high side. His pension will be closer to one-third of that number.

Fox 25 has helpfully shared Senator Brown’s pension application, and a handy guide on the State Board of Retirement website walks you through the math. The amount of our former Senator’s state pension will be the product of:

  • The number of years of service he is claiming (Brown is claiming 16.5 years)
  • Multiplied by an adjustment for his current age, (Brown is 55, the youngest age at which it is even possible for non-public safety workers to apply for pension benefits, so his age factor is .015)
  • Multiplied by the highest 36 consecutive month average rate of regular compensation (Brown made between $73,200 and $76,400 during that time, so let’s eyeball that number at $74,200).

So, (16.5) x (.015) x $74,200 = $18,364 per year, considerably less than $60,000, but maybe enough to pay the property taxes on the New Hampshire homestead. Glad that’s cleared up.

If, like me, you have a nagging suspicion that Senator Brown’s pension, even at the modest number of $18,364, nevertheless involves some advantageous calculations that are not available to many of the rest of us, a couple more points.

  • Senator Brown’s highest 36 months of compensation were his last three years in the State Senate, when he received an additional $15,000 (on top of the base legislator salary) for serving as Third Assistant Minority Leader. Since he was the least senior member of the minority party during that time, the $15,000 bonus he received was compensation for leading himself. Without that $15,000 bonus, his pension would be closer to $14,000.
  • Most of Senator Brown’s 16.5 years of service was time he spent not on the state payroll, but as a town assessor and then selectman in his home town of Wrentham, positions which were not full-time employment and for which he received little pay (a Globe article from last year reported that many towns pay their selectmen in the range of $3000 to $5000 per year). But for the existence of a law allowing such service to be counted toward state pension eligibility, the Senator would not have the 10 years of service required to collect a pension. As it is, he will be receiving more in pension benefits than a person who worked full-time for the state for the same number of years but whose highest 36 months of salary were less than Brown earned as his party’s Third Assistant Majority Leader.

(Cross-posted at Blue Mass Group, here)

Conversations with Charlie About Stuff

(Researched and written while listening to one of the Governor’s blizzard addresses, in which he said “stuff” at least twice. Offered simply as evidence of his curious fondness for the word.)

Q. What’s it like to be involved in a modern political campaign?
A. Campaigns are about many things — slogans, phone calls, fund-raisers, retail campaigning, and more. But, in the end, they are also about acts of God — stuff that happens that no one can predict or control.
(Boston Globe, 9/22/14)

Q. How will you allocate responsibilities between yourself and Lieutenant Governor Polito?
A. Health care is probably going to land in my lap. A lot of development stuff will probably land in hers.
(Boston Globe, 1/30/15)

Q. Do you have a comment on the demonstrators who blocked Interstate 93?
A. These protesters will be dealt with swiftly and appropriately, but public protests are sort of what being an American is all about and I approve of the more peaceful stuff.
(Boston Globe, 1/24/15)

Q. What are your impressions of the Biomanufacturing Education and Training Center at Worcester Polytechnic Institute?
A. There is a lot of great stuff going on.
(Worcester Telegram, 1/10/15)

Q. Can you offer the press any information about how you plan to construct your public relations team?
A. I’m sure we’ll have a chance to look at all those issues at a more detailed level in the next couple of weeks. And hopefully you guys will all be there to follow us on all that stuff.
(Boston Herald, 1/8/15)

Q. What do you think of the idea of a corporate tax amnesty program to generate cash for state spending needs?
A. I think the best solution, of course, would be not to have to ever do this stuff, but over time things happen and using this as a vehicle to sort of clean up another backlog is not a bad idea.
(Metrowest Daily News, 12/10/14)

Q. Any progress in your negotiations with the Obama administration about increasing pay for primary care doctors under the Affordable Care Act?
A. Obviously the devil in a lot of this stuff — for them and us — is as we try to shake detail out over time.
(Boston Globe, 12/6/14)

Q. Do you favor funding some portion of our transportation and other needs out of the yearly operating budget instead of paying for them with borrowed funds?
A. We historically borrowed money in Massachusetts to fund a lot of stuff that doesn’t have a 20- or 30-year shelf life. That’s a mistake.
(Springfield Republican, 11/12/14)

Q. Do you have a tendency to become too fixated on particular problems?
A. I tend to get kind of wrapped around the axle about stuff because that’s just the way I’m built.
(Boston Globe, 1/30/15)

Q. How are storm preparations affecting your ability to move forward with a plan to close the budget deficit?
A. It certainly affects the timing on some of this stuff.
(Taunton Gazette, 1/28/15)

Q. What is your motto?
A. Let’s get stuff done.
(Boston Globe, 10/16/14)

Mandatory Minimum Jail Time In Drug Cases: Time For The Thirty Years’ War To Be Over

Fingers crossed, but it’s looking like the Legislature might be ready to think again about the wisdom (or folly) of the statutes it passed thirty-some years ago that require jail time of at least some minimum duration in drug cases.

Promising signs that reconsideration is underway: a special commission established in 2012 to study the state’s criminal justice system reported back in November with a recommendation that the Legislature eliminate mandatory minimum sentences for all drug offenses in Massachusetts. The Chief Justice of the state’s Supreme Judicial Court announced that the court system will be taking “a hard and honest look at how we sentence those convicted of crimes, with the goal of not only punishing and deterring criminal behavior, but also lowering recidivism by “treating the root of the problem behind many drug offenses — the problem of addiction.” And there’s always the bean-counter argument against mandatory minimums: the cost of housing an inmate now tops $47,000 per year.

The most encouraging signal may be coming from the our new Governor. Charlie Baker has said that he supports “repeal of mandatory minimum sentences as part of an overall strategy to rethink how those with substance abuse issues are treated.”

Baker’s support gives a Nixon-goes-to-China boost to the proposal that other Governors could not have provided. That’s because Charlie Baker was a key figure in the administration of Governor Bill Weld two decades ago. At that time, Weld was the state’s most resolute defender of mandatory incarceration laws. Even after a Globe spotlight series in 1995 demonstrated that most of the people sentenced under those laws were not the rich kingpins but lower level mules, first-time offenders and those too poor to have anything to offer in a plea bargain, and after it was pointed out that enforcement of the laws disproportionately affected racial minorities, he remained unmoved. “You hear the argument that mandatory minimums interfere with judges’ discretion. I say, ‘So what?'” he told the Massachusetts Police Association. So it helps to have the person whom Weld called the “soul” of his administration in the Corner Office now.

Not everybody was as enthusiastic as Governor Weld about mandatory minimum sentences back then. House Speaker Charlie Flaherty, for one, doubted their value. In 1995, Flaherty tried to capitalize on an opportunity for leverage that arose when Governor Weld requested $700 million from the legislature to build more jail cells (where are you going to put all those people serving mandatory minimums for drug crimes?). The House voted to give the Governor some of the money he was asking for, but only on the condition that state law be amended to give judges the discretion not to impose mandatory minimum jail sentences in drug cases if they stated in their reasons in writing. But, alas, the opportunity was lost when the Senate, siding with Weld, did not agree to restore discretion in sentencing to the judiciary.

So years later, yes, it’s great news that the topic of mandatory minimum sentences is up for discussion again. But it is hard not to think about what’s been lost while this ill-considered policy has been state law.

We’ve spent so much of money incarcerating people. A MassInc study estimates the cost at $35 to $90 million per year — money that was not available for other purposes. With policies like mandatory minimum sentences in place, it is hardly surprising that we spend 21 percent less on higher education these days than we spend on jails. Then there are collateral costs: former inmates have a harder time finding jobs, incarceration leads to higher rates of divorce, kids with parents in jail are more likely to enter the child welfare system. And grave issues of racial equity: the Supreme Judicial Court reports that in the most recent year of available data, 450 defendants received mandatory minimum sentences for drug offenses and three-quarters of those 450 defendants were members of racial and ethnic minorities.

Much has been lost. But we can stop the losses by calling an end to this disastrous thirty years’ war.

The Gaming Commission’s Hurry-Up Offense: Dispatch from the “ATM’s in Casinos” Battlefront

The latest episode in the drama concerning the legality of placing ATM’s in casinos here in Massachusetts.

Quick recap. At present, a state law says that no ATM “shall be located upon premises where there occurs legalized gambling.” This law presents an obstacle of major significance to the casino industry, under whose business model casino patrons must have ready access to all of their assets. In a very lightly attended legislative session on Christmas Eve, the State Senate included a repeal of that law in an amendment to a much larger bill concerning the regulation of state-chartered banks. The maneuver did not go undetected, and those who favored more careful deliberation on this policy question succeeded in removing the proposed repeal before allowing the bill to pass.

The Gaming Commission, in sympathy with the casino industry, had earlier asked the state’s Division of Banks for its views, and last week the agency responded: no repeal of the law is necessary because it has already happened. Their argument goes like this: the 2011 gambling law included a directive to several state agencies to ensure that casinos do not allow “any credit card or automated teller machine that would allow a patron to obtain cash from a government-issued electronic benefits transfer [EBT] card.” This prohibition against EBT cards, the Division of Banks reasons, also operated to repeal the earlier law prohibiting the placement of ATM’s in casinos altogether. Despite the fact that the Legislature did not expressly repeal the ATM prohibition (as it did with seven other statutes it regarded as inconsistent with the gambling law), the repeal nevertheless occurred “by implication,” because no other interpretation is conceivable: the prohibition against the use of EBT cards can mean only that the Legislature intended that ATM’s capable of rejecting EBT cards are permissible.

Whether the Division of Banks is correct in its interpretation is certainly a matter of dispute. (Courts are very relucant to conclude that repeals “by implication” have occurred: the test for the principle of implied repeal is “whether the prior statute is so repugnant to, and inconsistent with, the later enactment that both cannot stand.”) For one thing, the Legislature evidently lacked confidence that the gambling law repealed the entire ATM prohibition “by implication,” or else it would not have attempted to repeal it expressly last month.

In any event, now that it believes it has a green light of sorts from the Division of Banks, the Gaming Commission has a hurry-up offense going. Draft regulations allowing ATM’s as long as they are 15 feet or more from the gaming area have been issued and the Commission is requesting comments from the public by 4:00 pm on this Monday, January 19 (yes, it’s a federal holiday).

The Commission’s decision on ATM’s is far from the final word. And they should know what you think. So this weekend, maybe while you’re watching the Patriots’ hurry-up offense, drop a line to the Commission with your thoughts — and remember, the wisdom of the ATM policy is fair game, too. Use ‘draft regulation comment’ in the subject line and email to

The Patrick Administration’s Legacy on Poverty, Part One: “Flaws at DTA”

In a widely circulated December op-ed Governor Patrick offered us a balance sheet on his eight years in office. On the plus side of the ledger: economic growth, student achievement, health insurance, energy efficiency and lots lots more. The ledger’s much smaller minus list includes the scandal at the state crime lab, the tragedy at the Department of Children and Families and “flaws” at DTA (the Department of Transitional Assistance, the state agency that manages various public assistance programs including Food Stamps).

To most people, “flaws” at DTA would mean the ones that received enormous publicity following reports issued in 2013 by the Inspector General and the Auditor. Those reports pointed to risks that people not eligible for benefits were nevertheless receiving them, and that the improper use of the debit cards used to issue benefits — known as Electronic Benefits Transfer (EBT) cards — was increasing those risks.

The subject of welfare abuse being a form of catnip for some, pretty soon the Herald’s Holly Robichaud, among others, was sufficiently under the influence to inflate the problem into a matter of “hundreds of millions of dollars,” far beyond the potential losses identified by the Inspector General and Auditor. The notion that hundreds of millions of dollars were being wasted was a very convenient fiction for some legislators who, at the same time, were fighting against proposals to increase revenues by a similar amount — why raise taxes when you can stop welfare fraud instead? Ideas about how to foil abuse abounded, and a plan to put Photo ID’s on EBT cards emerged as one clear winner.

Thus a really dumb idea was born. Or, rather, reborn. Years earlier, Governor Mitt Romney had considered the idea of putting Photo ID’s on EBT cards, but ultimately rejected it as impractical and not cost-effective. Impractical, because, like all debit cards, security against EBT card theft comes through the use of a PIN number, not a photograph. Moreover, Food Stamp benefits are calculated based on the resources of all the members of a household, and so all the members of the household are allowed to use the card. Putting a photo of one of the household members on the card simply creates an erroneous impression that no one else in the household is permitted to use the card. And not cost-effective, because the federal government (which funds the Food Stamp program) won’t pay for the extra cost of Photo ID’s, and so if the state wants them it has to pick up the tab. You would search in vain for another program that Mitt Romney thought was a waste of taxpayer money that was so enthusiastically embraced by so many of his supporters.

Fortunately, not everyone was buying the story that the state’s biggest problem was that public benefits might be going to ineligible people. Senator Dan Wolf, for example, told the Boston Chamber of Commerce that “to allow the conversation to turn once again to the few people on public assistance who may be abusing EBT cards is nothing more than blaming the victims, blaming the most vulnerable, and turning us away from the real issues we face.”

And for a time it seemed that Governor Patrick, like Senator Wolf, would resist the Photo ID mania. He suggested, for example, that its cost-effectiveness be measured, but when the Legislature rejected even that modest idea, he capitulated — and then some. His Department of Transitional Assistance got busy and Operation Photo ID started rolling out just before Christmas in 2013, weeks before the deadline the Legislature had set. Glitches depriving people of their Food Stamp benefits happened immediately, and they were sufficiently widespread and serious (8,200 EBT cards mistakenly deactivated, for example) for the federal government to step in with a warning letter to the state. Throughout 2014 the problems persisted, and once again last month, the federal government pressed the state for solutions.

Insisting, despite evidence and multiple warnings to the contrary, that its EBT card rollout had been “an overwhelming success,” DTA has pressed forward with more changes, including the launch of something called the “business process redesign” in late October. Under the redesign, food stamp clients no longer have an assigned case worker and instead are told to call a statewide assistance phone number. Likewise, applications are no longer handled at local offices and are all sent to Taunton for processing.

Another “overwhelming success?” Initial reports are very discouraging. Social service agencies and food pantries are reporting that when Food Stamp clients call the statewide phone number, no one is on the other end. Clients are turned away from local offices if they attempt to deliver an application there. Applications sent to Taunton often disappear, and those that do arrive join a growing backlog of unprocessed paperwork. As of this writing, DTA’s business process redesign looks to rival the Health Care Connector website and the online system for Unemployment Insurance as an information technology calamity.

Ominously, the rate of food stamp participation in Massachusetts appears to be confirming the bad news. Nationwide, the start of an economic recovery is lowering the number of food stamp recipients slightly, but as of September — even before DTA’s launch of its redesign, the decline in Massachusetts is 7.3 percent — four times the national rate. It seems inevitable that DTA’s practices will only accelerate that decline when the numbers for the last quarter of 2014 come in.

So, what “flaws” at DTA should we remember as the legacy of the Patrick administration? Just the ones that suggested that the wrong people were getting help, or also the ones that demonstrated that the right people were not getting help?

The answer might depend on whether, as Governor Patrick has often said, we grow a backbone and stand up for what it is we believe.

Three Quotes for Uneasy Times

For these uneasy times, here are three quotes from my favorite theologian, Reinhold Niebuhr.

It’s likely that most readers have not heard his name before, although most are familiar with his most famous prayer: “Lord, Grant me the serenity to accept the things I cannot change, Courage to change that I can, And wisdom to tell the difference.”


Niebuhr lived from 1892 to 1971. Few theologians exerted more influence in their time on the secular world. During the Great Depression, he championed workers’ rights and racial equality in Henry Ford’s Detroit. In the 1930’s, Adolf Hitler’s rise in Germany caused him to discard his pacifism. In the 1950’s, he was a foe of Soviet communism and equally the foe of American conservatives who were inclined to think that the evils of communism demonstrated the virtues of American democracy. And Martin Luther King, Jr. credited Niebuhr with curing his early “superficial optimism about human nature.”

  • On humor and its relation to faith:

“The intimate relation between humor and faith is derived from the fact that both deal with the incongruities of our existence. … Laughter is our reaction to immediate incongruities and those which do not affect us essentially. Faith is the only possible response to the ultimate incongruities of existence, which threaten the very meaning of our life.”

  • On America’s exceptionalism and aspirations to empire:

“The same strength which has extended our power beyond a continent has also interwoven our destiny with the destiny of many peoples and brought us into a vast web of history in which other wills, running in oblique or contrasting directions to our own, inevitably hinder or contradict what we most fervently desire. We cannot simply have our way, not even when we believe our way to have the “happiness of mankind” as its promise.”

  • On religion and confidence:

Humanity is fond of thinking that religion is confidence in our highest social values. “Nothing could be further from the truth. True religion is a profound uneasiness about our highest social values.”