Don’t Confuse What Goes on in This Building with Democracy

Don’t Confuse What Goes on in This Building with Democracy:

The disappearance of democracy in the Massachusetts State House

At the Massachusetts State House, I stepped outside of a packed hearing on updating the state’s bottle bill to speak with a young reporter for a western Massachusetts weekly. I had been “holding court” with the press all morning – giving them the Sierra Club’s point of view on this proposed legislation. I enjoyed this type of work immensely, as reporters were generally sympathetic to environmental bills and asked interesting questions.

But on this day, I was tired, frustrated, and not in a very good mood.

“How will the vote go?” a young reporter asked me.

“What vote? They’re not voting today” I replied.

“When will the vote be? Next week?” he asked.

“Probably never,” I shot back.

“But isn’t the majority of the committee in favor of it? Won’t they call for a vote?” he queried

That moment, I broke an unspoken but absolutely firm rule among lobbyists: never criticize the State House political system.  “Let me be clear,” I asserted. “Don’t confuse what goes on in this building with democracy.”

And that’s exactly what he printed.

Massachusetts is often seen as the home of American Democracy. It was home to John Adams, who was not only the state constitution’s primary author, he was also one of the authors of the United States Constitution. In fact, the Massachusetts constitution served as a model for the U.S. Constitution. But, over the years, weaknesses in our state constitution became more evident. The most glaring problem was that the House Speaker, whose position was originally created to keep order and facilitate the passage of legislation, was given the potential to amass an inordinate amount of power.

Exposing the flaws in a political system requires criticism of it. It’s difficult – taboo, actually — for anyone who’s part of the process to engage in this type of criticism. Any lobbyist who criticizes the State House’s power structure would instantly become ineffective, shunned by both Democrats and Republicans. Reporters who expose the system’s corruption would lose access to their sources. Even State House staff, as we’ve recently learned, were forced to sign nondisclosure agreements upon their departure. The system thus protects itself from scrutiny.

“They really don’t want your bill to pass”

Some years ago, representing the Massachusetts Sierra Club, I met with Speaker Robert DeLeo along with other allied groups. I had been in numerous meetings with the Speaker. This meeting was the culmination of many months of hard work by me and many other lobbyists. I told him that a coalition of groups had polled members of the House and we knew that a sizeable majority of the members supported our bill

“They’ve privately told me that they really don’t want your bill to pass,” the Speaker said.

Whether this was true or not isn’t relevant. It’s possible that the House Speaker had no conversations with anyone about our bill. Or maybe our bill really was secretly unpopular. I’ll never know. But what I immediately came to realize was that I could have 159 of the 160 members all love a bill, but unless I had the Speaker’s “blessing,” I had nothing.

How did we get here?

Practically speaking, there must be some order in a legislative body. The primary role of the House Speaker is to keep the body organized. Leaders and committee chairs need to be appointed. With 5,000+ bills filed every session, the legislature cannot possibly treat each one the same. Many require urgent action by the state, many should be summarily dismissed. Bills have to flow through the system.

If he/she wants to, a legislative Speaker or President can rule with an iron fist. Past Speakers in Massachusetts over the last 40 years have become increasingly controlling. Despite the fact that 3 of the last 5 House Speakers left under indictment (or under a cloud of wrongdoing), each employed a style of leadership that became increasingly more dictatorial and less democratic than that of their predecessors. This metamorphosis isn’t limited to just Massachusetts; it closely parallels the situation in other state legislatures, as well in the U.S. Congress.

There are those who argue that increased political divisiveness has created the need for more powerful leaders, and they may be correct. But Massachusetts has a Democratic supermajority (more than 66%); there’s no need to have Democratic Party unity when state Republicans represent only 20% of the House.

In order to understand how the system has devolved, it’s important to understand how the system theoretically works.

In Massachusetts (and most other states), proposed legislation takes a very specific path.  Forget what you’ve seen in Frank Capra’s Mr. Smith Goes to Washington. That’s Hollywood, not reality. Although there are possible exceptions, this is a summary of how a typical bill is supposed to be handled:

A.    A bill is proposed in the first two weeks of the 2-year session (legislators are elected for 2-year terms)

B.    The bill is assigned to the committee that hears matters of this type; e.g. Education; Public Health, and so on.

C.   Between a few weeks and 15 months later, the bill has a public hearing.

D.   At some point after the hearing, the committee may vote whether to approve it, modify it, or reject it. They can also do nothing.

E.    If the bill is approved, it’s typically sent to the Ways and Means Committee, which supposedly investigates the financial impacts of the proposal and then votes whether the bill should be sent to the full House or Senate (this is simplified). Ways and Means does not hold public hearings.

F.    If it passes both the state Senate and the state House, the bill goes to a specially appointed Joint Conference Committee, which studies any possible Senate/House differences in the bill. It then makes a recommendation to both bodies. The House and Senate then vote on the revised bill.

G.   The approved final bill goes to the Governor for his/her approval.

How the system really works

1.    Legislators file their bills in the first two weeks of the session. In Massachusetts, bills filed by the Governor, the Speaker, or the Speaker’s close allies can be filed at any time. There are typically over 5,000 bills filed each session.

What should happen:

All bills that legislators wish to have considered during the 2-year session should be submitted before the deadline, typically set as 2–3 weeks after the start of the session. If a bill is in response to an emergency situation, late filing should be permitted.

What actually happens:

Bills late-filed by others are ignored, unless the Speaker has specifically asked for the bill to be filed.

2.    At roughly the same time that bills are filed, the two bodies elect their leaders. The House selects a Speaker, the Senate selects a President. The House Speaker selects his/her committee chairs, and leaders. Only certain members of these chairs and leaders become the speaker’s inner circle

What should happen:

When the Speaker selects his committee chairs and Leadership members, he should choose a group that represents the people of the Commonwealth: minorities, progressives, women, legislators from western, central, and eastern Massachusetts.

What actually happens:

The Speaker chooses only his most loyal followers for Leadership positions, ones who will abide by all of his requests. But these so-called “leaders” aren’t the ones who make the significant decisions. The real decisions are made by the Speaker and an inner circle: the chair of Ways and Means, the Majority Leader, and sometimes one or two others. This inner circle makes the vast majority of ALL decisions. The rest of the so-called Leadership may be in a position to urge the Speaker to support something, but are largely irrelevant in the decision-making process. Some former members have privately referred to themselves as “window dressing.”

3.    After those initial weeks, the 5,000+ bills are categorized and sent to the appropriate committees. (For example, most environmental bills are sent to the Environment and Natural Resources Committee.) Shortly thereafter, hearings begin. Legislative rules require that every bill receive a public hearing. This means that anyone, citizen or not, individual or corporate representative, can testify on any bill that he/she wishes.

There are usually 16 members on every Joint Committee: 6 Senate members and 10 House members.

What should happen:

At the beginning of the session, the committee chair (appointed by the Speaker) prioritizes these bills, placing the most urgent first; and those requiring more time and study, toward the end.

What actually happens:

House members outnumber Senate members 3 to 1. This imbalance ensures that the House members will always have the votes to control what goes on in the committees.

The Speaker instructs the committee chair as to which bills he wants to move immediately. Bills unsupported by the Speaker that may bring out a large crowd or unwanted media attention are placed on the calendar during inconvenient times, like the Friday before a 3-day weekend or in July and August. Unsupported bills are often grouped together, guaranteeing a painfully long day of hearings. This is done to suppress public turnout.

4.    During the hearing

Hearings are usually announced a few months to a few weeks before the hearing date. A hearing can cover just one bill, but more typically covers 20 or more. Often, a hearing will cover all bills filed on one theme, e.g., on electric cars, on marijuana, on RTAs (Regional Transit Authorities), etc. The hearing allows the public to speak for 2–3 minutes each. The order of speakers varies, but generally speaking, the sponsoring representative, if present, speaks first, then elected legislators, mayors, and representatives of the state departments that are affected by the bill. Often, advocacy groups and lobbyists are next in line, then members of the public are invited to speak. A hearing on a specific bill can last minutes or all day.

What should happen:

The 17 committee members should be present to understand the reasons to support a bill’s passage, or perhaps to understand why they should oppose its passage. They can also move to amend a bill. They can — and often do — ask questions about a bill’s details, history, or other aspects of the proposed bill. And, most importantly, by attending the hearing, they can see how the public views a legislative proposal.

What actually happens:

Typically, only 5 or 6 members of the 16-member committee show up. The rest don’t bother to come, especially if they know that the Speaker has already given his approval or disapproval. Some members of the committee are put on specifically —and only — to vote as the Speaker says, and thus are on the committee only as votes. There’s no reason for them to show up when the fate of a bill has already been decided. The longer a hearing goes on, the fewer representatives and senators stay to hear testimony. I’ve actually been at hearings where there’s only ONE member present. Nevertheless, advocacy groups present their cases as if all were present.

5.    After the hearing

Some while after a hearing, the committee members will vote on those bills they wish to have resolved. All bills must be voted on by approximately March 15 of the second year of the session, or they are deemed to have failed.

What should happen:

After a hearing — given adequate time to digest the testimony, seek answers to any remaining questions, and read written testimony — and after careful consideration, the members vote yea/nay on each bill.

What actually happens:

The committee chair decides when bills are brought to a vote. In today’s legislature, nothing gets voted on without the Speaker and his inner circle approving it. When the committee meets to vote, they do so in executive session (that is, off the record and typically without public witnesses). Votes can be by email, phone, or in person. The tallies of the votes are secret and not public information. The possible results are only pass, fail, or “study.”

Legislators don’t like to say “no.” Instead of voting no, they’ll send a bill to “study.” Of course, there is no study. There’s no funding for studies, there are no staff members assigned to the studies. Sending a bill to study is their indirect way of saying “no.” The vast majority of the 5,000 bills are sent to study. Some of them have been sent to study every session for ten years — or longer.

6.    After a bill is passed by a committee

There are bills among the 5,000+ that are passed by committees. Sometimes they’re passed intact, but, more often, they’re modified. Occasionally, the entire bill is rewritten. But bills do pass. And then they’re sent to Ways and Means. 

What should happen:

Ways and Means (W&M) is not a joint committee (that is, a committee with both House and Senate members). The House and Senate each have their own Ways and Means Committees. A W&M Committee is supposed to investigate the financial implications of a proposed bill. If a bill has no financial impact, or has a positive and desirable one, W&M will pass this (indirectly) to the entire membership of the House. (This is simplified.)

What actually happens:

Ways and Means is known as a “top-down committee”; the chair tells the committee members exactly what will happen to each bill. There are no on-the-record meetings or hearings. A bill favored by the Speaker will receive a positive recommendation by Ways and Means and then be sent to the floor for a vote. At times, a committee chair will be under enormous pressure by committee members, constituents, or others to pass a bill. If the pressure is significant, the committee chair will allow it to pass, knowing that it will be killed by the next step in the process: Ways and Means.  

7.    The deadline: July 31 of the second year of the session

The 2-year session ends on July 31 of the second year. During the previous 19 months, the 5,000+ bills that have been proposed have had hearings. In some cases, bills have emerged from their assigned committees with or without changes. Many bills that were sent to Ways and Means have emerged and have been approved by the full House and/or Senate. As the deadline approaches, many bills have gathered in Ways and Means.

What should happen:

As bills emerge from the committees they were assigned to, ones that are voted on positively are sent to Ways and Means. In turn, Ways and Means reviews the financial implications of each bill, and votes positively for anything that either costs anyone very little — or costs nothing at all.

What actually happens:

A bill proposed by one of the house members, and supported by the Speaker, will be held until the very last days — or hours — of the end of the session on July 31 (of the second year). This is one of the most important aspects of the Speaker’s hold on power. The Speaker needs the bill as leverage to ensure the sponsoring representative’s (or representatives’) allegiance. If a representative’s favorite bill were passed at the beginning of the session, what leverage would the Speaker have over him/her?

Bills that are not supported by the Speaker — but have somehow made it through the process — enter a black hole (the same black hole that swallowed democracy). These bills are never released by Ways and Means, and therefore die. This allows the Speaker to kill a bill, and allows the sponsoring representative to save face with his/her constituents. The representative’s refrain: “I got the bill all the way through the process, I even got a positive report from the committee, but the session ran out before we could vote on it.”

By now, it’s not hard to see how the position of House Speaker has evolved into a “destroyed democracy.” The outcome of every bill is preordained. Everything is controlled by the Speaker and his inner circle.

The Budget

I could write many pages on the budget process and its dysfunctionality; below is only a short summary.

Like in most states, the state budget process in Massachusetts is an annual rite. Each year, the governor submits a “wish list” budget containing changes that he/she wants to see: funding/defunding various programs, and, most importantly, drawing attention to his/her priorities. The Governor’s budget has no legal standing; the legislature can completely disregard it if they choose.

Meanwhile, the Speaker, the House Ways and Means chair, and a few others, craft their own budget. They pay close attention to the “Cherry Sheet,” a list of set-asides for giving back to each of the state’s 351 municipalities. (It’s called a cherry sheet because it was originally printed on cherry-colored paper.)

State representatives work furiously to get their in-district projects funded. While there’s no “quid pro quo” activity (that would be illegal!), it’s not a secret that loyal supporters of the Speaker get more cherry-sheet funds.

There are two main parts of the budget: the main body and “outside sections,” which are essentially amendments. State representatives submit their requests for additional funding via this system.

Watching the debate and vote on the entire budget’s outside sections, and you’ll witness a harsh lesson on how our democracy has failed. As each item is called, the sponsor (and occasionally other supporting reps) makes a speech as to why it should be included in the budget. The Speaker’s lieutenants will be clearly present on the House floor. One will be negotiating with the item’s proponent, allowing an item to pass, perhaps with changes. The other will be orchestrating the vote: e.g., requiring a “voice vote” (meaning that it failed, no matter how many voiced yeas and nays there were), or orchestrating a roll-call vote. Roll-call votes require that the representative clearly vote “yea,” as instructed. Reps are occasionally permitted to “take a walk” (leave the room) if they opposed a budget item. While past Speakers would permit some leeway on minor amendments, the current leadership orchestrates the vote on every budget item.

One year, I sat in the gallery, naively watching a fascinating exchange on repealing the state’s sales-tax exemption for airplane parts. (It’s true: we don’t tax airplane parts.). Numerous representatives spoke convincingly that this was a giveaway to the wealthy (duh!). One representative (who had a small airport in his/her very wealthy district) said that these aircraft owners would simply fly their private planes to NH, and we would lose all our airplane repair businesses. Others pointed out that our sales tax is hardly enough reason to cause someone to spend part of their vacation in another state, and that the cost of detours or extra flights would exceed the dollar amount of the sales tax. Only one representative wanted to keep the exemption. It was obvious how the vote would go. Or so I thought. But there was no vote. The bill failed on a so-called “voice vote.” We still don’t charge sales tax on airplane parts.

How did it get this way?

Historically, it wasn’t always this way. Nevertheless, in the past 40 years, Speakers have become increasingly autocratic. House members and former members recall the administrations of Flaherty, Finneran, and DiMasi as strong and powerful, but none of them controlled every bill. The past Speakers would control important bills — or ones on which they had strong opinions. They all allowed their lieutenants — or even the entire body — to make decisions on what were seen as minor bills.

But as the system has progressed, each successive House Speaker has exploited the potential, under the state constitution, to amass tremendous (and despotic) power to the office. And if this trend continues, it’s likely that the next Speaker will be even more autocratic.

When Speakers are elected at the beginning of the session, each comes equipped with a preordained “leadership team” — loyal lieutenants who will act on their leader’s wishes and wield the Speaker’s power as needed. These top leaders include the chair of Ways and Means and other key posts. From this power base, various representatives trade their fealty for positions of authority. Some more “powerful” (some use the term “obedient”) representatives become committee chairs; others may just get to serve on their favorite committee.

Those who oppose the Speaker (or who simply annoy him) will get terrible committee assignments, one staffer, and cramped, dank offices hidden away in the State House basement. These committees do little, have few bills, and have no authority. Meanwhile, powerful committee chairs get additional staff, nice offices, and the opportunity to hobnob with leadership members. All of this isn’t necessarily bad. However, without access to leadership, a representative has little chance of passing his/her bills.

Having staff is very attractive to State representatives. Normally, they’re allowed one full-time staffer, -- someone with clerical skills. This staffer must handle policy inquiries, constituent services, committee work, scheduling, and public relations. It’s a daunting job, and far more than the average person can handle. Committee chairs can have 3 or 4 staff, or more; this allows one staff person to dedicate his/her time to constituent services. Good constituent services are essential for a representative’s reelection effort. The more people a representative can help, the more votes the rep can count on. One staffperson will be an attorney to write and amend bills. Without this expertise, a representative is usually dependent on lobbyists to author his/her bills.

How can we fix the system?

I’ve painted a very dark picture of state politics. And although I’ve never seen any signs of financial corruption under this speaker, the current system is a grave and serious perversion of democracy.

It’s easy to become cynical about today’s political climate. But there are paths to change, and it’s up to us to seek them out. Some years ago, one state representative tried to oust the Speaker, only to lose, have his committee position stripped, and then be moved to a damp, tiny office. But he did the unthinkable — he challenged the Speaker!

We need to encourage our elected representatives to challenge the Speaker, perhaps not by threatening to overthrow him but by pushing back, refusing to go along with “mandated yea votes.” We also need to pressure our elected representatives to push back whenever possible, such as by introducing bills via alternate methods (there are perhaps a dozen ways to get a bill into consideration). We can encourage our reps to vote for candidates for Speaker who pledge to democratize the House, much as Rep. Byron Rushing did in 2005.

But above all, we need to elect leaders who will be democratic leaders.

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Phillip Sego was an environmental advocate with the Massachusetts Sierra Club. He retired in December, 2015.