David Bernstein: “Let’s Dismantle the Massachusetts House of Representatives”

David Bernstein has really had it with the Massachusetts Legislature’s opaque back-room operations and its continuous failure to address many of the state’s long-term needs. And in this month’s Boston Magazine, he’s offering a solution: “Let’s Dismantle the Massachusetts House of Representatives”:

If all of this infuriates you; if you’re also enraged that Beacon Hill continuously fails to seriously address the state’s long-term needs for transportation, housing, education, and development; and if you’re sick and tired of the state legislature’s opaque back-room operations, I have a proposal for you: Eliminate the Massachusetts House of Representatives.

Points for boldness! This is also a thoughtful argument that touches on the feudal origins of the two-chamber system (the nobles needed a safe space where they could protect themselves against the tyranny of the majority) and the present effect of that system, which is to allow “special interests to gum up the works without any public accounting for legislators.” Exhibit A in this regard is the conference committee process, which comes into play every time the House and Senate pass differing versions of a bill:

As Beacon Hill watchers know, bills in conference committee pile up until the final days of the formal session, when the supposed work of two years, 200 legislators, and committees in open hearings is actually done in a hectic rush, by a handful of people, horse-trading within and between bills, until finally spitting out new versions for the two chambers to hastily endorse.

Also not to be missed is a timeline detailing Speaker DeLeo’s consolidation of power and predicting the end date of the DeLeo era (January 2021, when he becomes a lobbyist).

A couple thoughts:

First, in deciding on its governing rules for this new (2017-2018) session, the Legislature acknowledged the problem of the end-of-session bottleneck. The new rules require the joint committees, which handle the initial consideration of bills, to complete their work in early February rather than in mid-March, and they also prohibit the appointment of new conference committees within 14 days of the end of a legislative session. But there’s no deadline for conference committees to finish their work, so stay tuned to July of next year to see if these rules changes have practical results.

Second, if the Legislature is continually failing to address the state’s pressing issues, the question arises — what are they doing with their time?

My theory: they’re doing a lot of enacting, but the bills that are passed fall under the decidedly “noncontroversial” category — designating bridges and overpasses in honor of beloved community members; establishing sick leave banks for one state employee at a time, exempting a single municipal position from the Civil Service laws, or granting one additional liquor license to one town.

In 1997, the noncontroversial bills like these made up about a tenth of the Legislature’s output. Now it’s more like one in three.


The graph presents a corollary of Bernstein’s thesis — our Legislature avoids many pressing issues (charter schools and marijuana being two recent examples) and increasingly contents itself with hyperlocal items that lack wide application or great import.

Anyway, read the article. I’m not convinced about the remedy he’s proposing, but the diagnosis, seems to me, is beyond dispute.

Field Notes from the State House: The “You Ain’t Goin’ Nowhere” List

With the Legislature’s 2015-2016 session down to its last six weeks, it’s time to begin recording casualties — bills that just aren’t going  to make it into law.  The list is not a short one, so we better get started.

First up: a bill to close a loophole in state campaign finance law. The loophole in question was first discovered and used to great advantage by former gubernatorial candidate and now-Governor Baker.  It allows state political figures to pay state expenses with federally-raised money and to avoid disclosing the source of money spent on campaigns for state party membership.

The bill to close the loophole was filed by Senator Jamie Eldridge with the backing of Common Cause following an April decision by the state Office of Campaign and Political Finance that the Baker campaign’s use of these funding practices does not violate current state law. Because Senator Eldridge’s bill was filed after the January 2015 deadline for legislation to be considered automatically, both the Senate and House had to agree to allow it to move forward. The Senate has done so, but the House has not.

More evidence of the oft-rumored bromance between the Governor and the Speaker?  It’s pretty hard, for example, to imagine GOP Governor Romney receiving this sort of consideration.

The Speaker insists to the contrary, telling the Globe through his spokesman that the sole reason for the bill’s lack of progress is its late filing date. “With rare exception, the House generally does not fast-track late-filed legislation, especially with eight weeks left.” Well, OK — and there’s no man behind any Green Curtain that we must not pay attention to.

There may be other reasons why the Speaker is letting the clock run out on this bill. For one thing, the loophole is available to both parties, not just to the GOP. For another thing, the Republican state committee elections on which Baker’s folks spent $300,000 in undisclosed contributions resulted in the defeat of many socially conservative GOP party members. Their ouster helped to smooth the way for the Governor to signal his acceptance of the transgender public accommodations bill (assuming that it reaches his desk). With Baker’s opposition eliminated, the Speaker also had a much easier time of things with that troublesome piece of legislation. What’s not to like about this new GOP state committee?


What’s a “Money Bill?” (More Annals of Senate-House Discord)

Update: May 19: Speaker DeLeo continues to be peeved that the Senate regards the budget proposal that the House passed last month as a money bill, and is now threatening to take the entire matter to court, which could delay the completion of the budget past the end of the fiscal year on June 30.

Let’s review. The House budget includes a provision expanding the amount of money available for a tax credit program, thus reducing general state tax revenue. The House and Senate have agreed (in a document on the Legislature’s website) that a money bill “may either reduce general state tax revenue or increase state tax revenue.” Q.E.D.

Hmmm. Is litigation over the meaning of a money bill the sort of “progress and cooperation” that we were promised?


Original post: May 7

The annual state budget process, now underway, has opened a new battlefront in the ongoing power struggle between the Senate and the House: what’s a “money bill?”

Our State Constitution (in Part II, chapter 1, section 3, article 7 for you wonks out there) says that “all money bills shall originate in the house of representatives; but the senate may propose or concur with amendments, as on other bills.”

We know from a very old decision by the Supreme Judicial Court (126 Mass. 557 for you wonks out there) what a money bill is not — it is not simply a bill that appropriates money for government spending. Money bills, the court said in that decision, are those that “transfer money or property from the people to the State.”

The Constitutional provision giving the Senate the power to “propose or concur with amendments” to money bills muddies the waters of that court decision a little. Are money bills only those that raise taxes? If the House were to propose a new tax, the Senate’s power to propose amendments would seem to allow that body latitude to increase or to lower that tax, or other taxes, or to change tax deductions or tax credits, or to otherwise amend state tax policy.

So in recent memory the House and Senate have defined a money bill as any bill that alters tax policy. In 1997, for example, the House budget proposal included a tax credit for homeowners who had to upgrade their septic systems and a one-year extension of an investment tax credit. The Senate, with the understanding that the House budget was a money bill, proposed additional tax credits and deductions, including the establishment of a state counterpart to the federal earned income tax credit for low-income families.

In the interest of preserving its sole power to originate money bills, and therefore to control when taxes are even considered, the House has been very careful about when it proposes any changes in tax policy. And the Senate has kept its side of the bargain, deferring to the House — to the frustration of many of that body’s members who would like an opportunity to debate tax policy, including its GOP members, who are eager for a debate on tax cuts.

But this year there are complications. During its budget debate last month the House adopted an amendment expanding the cap on a land conversation tax credit from $2 million to $5 million (a proposal, if you’re wondering, that has not been through the Speaker’s vaunted “committee process”). The inclusion of that provision led Senate President Rosenberg to pronounce the House budget a money bill and to add that the Senate would be taking up taxation issues in its budget debate.

It’s not clear whether House Speaker DeLeo was aware of the money bill implications of the tax credit amendment when he agreed to it. He has said that he disagrees with the Senate position (but note that he avoids using the language — “money bill” — that would clarify his view): “I don’t think it’s a revenue bill…I think a revenue bill involves that where, very simply, you’re talking about the increasing of revenue and I don’t think the budget that we did did that at all. So I feel clear that it’s not a revenue bill.”

It would seem that the Speaker now has a couple of choices: to concede that the tax policy provision in the House budget makes that bill a money bill, or to adopt a new policy that restricts the definition of a money bill to one that increases revenue rather than one that alters tax policy. The second choice might help save face this year, but it would mean a significant weakening of the power of the House to control tax policy debate in the future.

In the meantime, the Senate will have a rare opportunity for far-ranging tax policy discussions in its budget debate next week.

To sum up this latest skirmish: unforced error by House Speaker DeLeo, advantage Senate President Rosenberg.

On Wednesday: More of Robert (DeLeo)’s Rules of Order

In our last episode on the parliamentary wrangling between the chambers of the Massachusetts Legislature, House Speaker Robert DeLeo was insisting that under the Joint House-Senate rules, the House was in charge of deciding if and when any bill would move out of committee (and the Senate was in charge of cleaning the chimney and sweeping the hearth). The Senate had responded by proposing changes to those rules to reflect the position of John Adams, among others, that “the House and the Senate are equal.”

Yesterday, a conference committee of the two chambers met for the first time to try to reach a compromise. It didn’t sound like much progress was made, although House member Ron Mariano did comment on how nice it was to see Senate member Anthony Petruccelli.

Speaker DeLeo’s insistence on the prerogatives he claims for the House (which he refers to as “the committee process”) is often in evidence, dramatically so on one occasion last March when he engaged in a labyrinthine series of maneuvers simply in order to avoid having the House act on a minimum wage bill that the Senate had acted on first. Here’s how he explained why such elaborate choreography was required: “It’s always been my feeling that this piece of legislation or any other piece of legislation must go through the committee process and that’s what this bill did, go through the committee process.”

Well, maybe not always. Like the time the Supreme Judicial Court ruled that a criminal statute prohibiting the secret photographing of a nude or partially nude person was not broad enough to encompass the modern invasion of privacy known as “upskirting.” The Legislature put a law broadening the statute on the Governor’s desk the next day. When asked why that bill had not gone through the usual committee process, the Speaker replied that “special circumstances” may justify a departure from the committee process: “What I have heard generally from the public on this particular matter, the outrage that I have heard, I feel very comfortable in having the legislation pass without the so-called committee hearing process.”

Looks like we’ll be seeing some “special circumstances” again at Wednesday’s House session. You might have noticed that the owners of Suffolk Downs racetrack in Revere (which as we know is in Speaker DeLeo’s district) reached an agreement recently to bring horse racing back for a two-year period starting this summer. That would be the first good news for Suffolk Downs, whose bid for a casino license lost out last year, in quite a while. In order for horseracing to come back, though, the Legislature needs to approve. And guess what? The bill that the House is planning to pass on Wednesday (a supplementary funding bill that Governor Baker filed for some accounts running deficits, notably snow removal) was amended by the House Ways and Means Committee today to include the statutory green light that Suffolk Downs needs.

So good luck to the Senate — and to all of us — in figuring out when the House means “the committee process” and when it just means “the so-called committee process.”